IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 FAO.No. 47 of 2008() -------------------- AGAINST THE ORDER DATED 24/01/2008 IN IA.NO.507/07 IN OS.19/2007 of SUB COURT,THODUPUZHA .................... APPELLANT/RESPONDENT -------------------- MR.VARGHESE, SON OF VARKEY, AGED 53 YEARS, RESIDING AT PUTHAYATHU HOUSE, THAIKATTUKARA P.O., MUTTOM, ALUVA-683 106, (ADDRESS SHOWN IN THE IMPUGNED ORDER AS PUTHAYATHU HOUSE, MANNAMKANDAM VILLAGE, ADIMALI KARA, DEVIKULAM TALUK, IDUKKI DISTRICT). BY ADV. SRI.SREELAL N.WARRIER SRI.THYPARAMBIL THOMAS THOMAS RESPONDENTS: APPLICANT ---------------------- MARTIN PAUL, AGED 41 YEARS, SON OF PAILY, RESIDING AT THURUTHIKKATTU HOUSE, MANNAMKANDAM VILLAGE, ADIMALI KARA, DEVIKULAM TALUK, IDUKKI DISTRICT. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- F.A.O.NO.47 OF 2008 -------------------------------- Dated this the 13th day of February, 2008 JUDGMENT Raman, J. Appellant is the defendant in O.S.No.19/07 and also the respondent in I.A.No.507/2007. The said I.A. was filed by the plaintiff as the petitioner for attachment before judgment under Order XXXVIII Rule 5 read with Section 151 of the C.P.C. Since the petitioner already entered appearance in the suit and the present petition was filed later in point of time, copy of the application was served on the appellant herein. No ex parte order as such was passed by the court below. The appellant filed his counter affidavit raising the contentions. After adverting to the contentions, the court below passed the order impugned in this appeal by which the court below directed that the property of an extent of 7 cents more particularly described in the operative portion of the order and shown in the attachment schedule, is attached till the disposal of the suit. The appellant, aggrieved by the said order, has preferred this appeal. 2. The learned counsel Sri Sreelal Warriar appearing on behalf of -2- F.A.O.No.47/2008 the appellant contended that the order impugned in this appeal suffers from material irregularity or illegality. In that order the court below did not give him an opportunity to furnish security, which is mandated by the provisions contained in Order XXXVIII Rule 5 and 6. It is also contended that in case no such opportunity is given, the attachment will be invalid. 3. It is true that before ordering attachment of the property, the party against whom the order of attachment is sought for, should be given an opportunity to furnish security to the satisfaction of the court below, failing which alone there necessitates an order of attachment. At the same time, it is not invariable rule that in all cases the court below at the first instance should give an opportunity to offer security and if only such security is not offered, the court below shall pass an order of attachment. It is expressly provided under sub rule (3) of Rule 5 of Order XXXVIII that the court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. Therefore, when circumstances warrant and the court is satisfied by affidavit or otherwise, that an ex parte order of attachment should be issued, it was open to the court to issue conditional order of attachment simultaneously giving an opportunity to the party concerned to offer security. 4. In this case the appellant entered appearance and contested the -3- F.A.O.No.47/2008 petition. Hence further notice becomes unnecessary. But admittedly there was no averment in the affidavit expressing his readiness to offer security. The contentions raised by him are not accepted. Therefore, when he had entered appearance and file a counter affidavit, we do not think in the factual situation that the court below has committed such illegality requiring the order to be set aside by this Court. The court below has passed an order of attachment until the disposal of the suit as though there is no opportunity for the appellant herein to offer security and seek lifting the attachment. As a matter of fact, if such an opportunity was given in the order impugned, it would have been more appropriate. In the circumstances, we clarify that in case the appellant offers security to the satisfaction of the court below, the court below will pass appropriate orders lifting the attachment, after hearing both sides. Since we are not setting aside the order impugned in this case; but only clarifying the matter, we do not think it necessary to issue notice to other side. Appeal is disposed of as above. P.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv.