IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 20308 of 2009(O) --------------------------------------- (IA.NO.1567/2009 IN OS.306/2009 OF I ADDL.SUB COURT, THRISSUR) .................... PETITIONER: ------------------- JAYADAS,AGED 37 YEARS, S/O.LATE SREDHARAN, CHOREKATTUVALAPPIL, VARADIUM,CHOLLISSERY P.O.AVANUR VILLAGE. BY ADV. MR.P.RADHAKRISHNAN. RESPONDENT: ---------------------- JAYAN,AGED 41 YEARS,S/O.RAJAN, MADAMBIKKATTIL VEEDU,PUNKUNNAM, THRISSUR. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). No. 20308 OF 2009 = = = = = = = = = = = = = == = = = = = = = Dated this the 20th day of July 2009. JUDGMENT The writ petition is filed seeking the following reliefs:- a) Call for the records leading to the passing of Ext.P-4 order and set aside the same. b) pass any other order which this court deems fit and proper in the circumstances of the case. c) award the costs of the petition. 2. Petitioner is the defendant in O.S.No.306/2009 on the file of the Sub Court, Thrissur. The respondent is the plaintiff and the suit is for cancellation of an agreement of sale and refund of money. With the suit, the plaintiff moved an application for interim attachment of the schedule property of the defendant under Order 38 Rule 5 of the Code of Civil Procedure. The petitioner/defendant appeared in response to the notice and filed a counter affidavit to the application. The learned Sub Judge after considering the materials placed with respect to that application and hearing the Counsel on both sides, ordered for interim attachment of the schedule property W.P.(C). No. 20308 OF 2009 2 allowing the application. Ext.P4 is the copy of that order. Impeaching the correctness and propriety of Ext.P4 order, petitioner has filed this petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned Counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to the materials produced and perusing the impugned Ext.P4 order, I find no notice to the respondent is necessary, and it is dispensed with. The learned Counsel for the petitioner submits that no notice as contemplated under Order 38 Rule 5 of the Code of Civil Procedure directing him to furnish security was served before proceeding with an enquiry on the application moved by the plaintiff for interim attachment of his property before judgment. On merits also, learned Counsel submitted that the impugned order is unsustainable under law and facts. Whatever that be, I find the impugned Ext.P4 order challenged in the writ petition has been passed by the court below after hearing the respondent W.P.(C). No. 20308 OF 2009 3 providing him an opportunity to show cause why his property should not be attached before passing of the judgment, and so much so, the order falls squarely under Order 38 Rule 6 of the Code of Civil Procedure from which the petitioner has a statutory right of appeal as envisaged under Order 43 (1) (r) of the C.P.C. When an alternate efficacious remedy to challenge Ext.P4 order by way of appeal is available its correctness cannot be questioned invoking the supervisory jurisdiction vested with this Court. Reserving the right of the petitioner to challenge Ext.P4 order as provided by law, the writ petition is closed. Petitioner can seek for exemption of the period during which the writ petition was prosecuted in reckoning the period of limitation for preferring the appeal, if any, from the court concerned, as covered under Section 14 of the Limitation Act. Copy of Ext.P4 order produced shall be returned to the learned Counsel for the petitioner. S.S.SATHEESACHANDRAN JUDGE kkms/