IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 18569 of 2009(O) -------------------------- AGAINST THE ORDER DATED 06/04/2009 IN IA.623/09 IN OS.83/2008 of SUB COURT,NEYYATTINKARA .................... PETITIONER(S): IST DEFENDANT: -------------------------------------------------- JOSE PHILIP, FORMER SUB INSPECTOR OF MARANALLOOR POLICE STATION, NOW WORKING AS SUB INSPECTOR, PARAVOOR POLICE STATION, KOLLAM DISTRICT. BY ADVS. MR.S.M.PREM, SMT.K.P.SANTHI, MR.P.K.NIJOY, SMT.C.PRABITHA, SMT.NISHA G.THARAMAL. RESPONDENT(S): PLAINTIFF: ---------------------------------------------- D.ASOK KUMAR, S/O.DAMODARAN PILLAI, 'SOPANAM', MELARIYOD ROAD, VENDANNOOR, MARANALLOOR VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 18569 OF 2009 O ```````````````````````````````````````````````````` Dated this the 3rd day of July, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “ set aside Exts.P3 and P7 orders of the Sub Court, Neyyattinkara.” 2. Petitioner is the first defendant in O.S.No.83/08 on the file of the Sub Court, Neyyattinkara. Respondent is the plaintiff. Suit is one for a declaration that the action taken by the petitioner, who is a Sub Inspector of Police, under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957, is illegal and void, and also for awarding of damages to the tune of Rs.1,36,000/- and other consequential reliefs. With the suit the respondent/plaintiff moved an application for interim attachment of the undivided share of the petitioner in his family property moving an application under Order 38 Rule 5 CPC. The learned Sub Judge passed an interim order of attachment directing him to furnish security or show cause why he should not furnish security. In response to the notice, the petitioner appeared and filed objections and sought for lifting the attachment. In his objections WPC.18569/09 : 2 : among other contentions he also challenged the maintainability of the suit for want of proper notice under the Kerala Police Act and also under the provisions of the Mines and Minerals (Development and Regulation) Act impeaching the suit claim as barred under the provisions of that Act. The learned Sub Judge, after hearing both sides, declined to lift the attachment and overruled the objections. Ext.P7 is the copy of that order. Impeaching the propriety and correctness of Ext.P7 order, the petitioner has filed this writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Having regard to the facts and circumstances presented with reference to Ext.P7 order impugned, I find that no notice to the respondent is necessary and hence it is dispensed with. The learned counsel for the petitioner submitted that along with the objections, he has filed a written statement impeaching the maintainability of the suit and also the protection given to him as a public servant as insulated under the provisions of the Kerala Police Act and also the Mines and Minerals (Development and Regulation) Act. Without adverting to the objections so raised by him, Ext.P7 order was passed declining to lift the attachment for WPC.18569/09 : 3 : an act which is stated to have been done by him in discharge of his official duties, is the grievance espoused by the learned counsel for the petitioner. Perusing Ext.P7 order, I find that the learned Sub Judge refused to lift the attachment for the sole reason that the petitioner has not furnished security as ordered. There is no advertence nor even any reference as to whether any of the ingredients to be satisfied for passing an order under Order 38 Rule 5 CPC has been made out in the case to make the attachment absolute. Needless to point out an interim order of attachment before judgment can be passed by a court only if it is satisfied from the materials placed that the defendant in order to defeat the decree that is likely to be passed in favour of the plaintiff in the suit is about to dispose the whole or any part of his property from the local limits of the jurisdiction of the court. There is not even a whisper in Ext.P6 order that the petitioner who is a public officer still continuing service as a Sub Inspector of Police is culpable of having done any act contemplated under Order 38 Rule 5 CPC with intend to obstruct and delay the execution of a decree in case the suit claim is upheld after adjudication. Ext.P7 order on the face of itself is unsustainable and liable to be set WPC.18569/09 : 4 : aside. I do so. I direct the learned Sub Judge to consider the objections raised by the petitioner in the application for attachment afresh and also to examine the challenge raised by him in his written statement as to the maintainability of the suit. Maintainability of the suit has to be considered as a preliminary issue and appropriate orders thereof has to be passed without delay. Similarly, the application for attachment in respect of which objections have already been raised by the petitioner should be heard and disposed before settling of the issues as it is submitted by the learned counsel for the petitioner that, the other defendants have not filed their written statements so far. The court below is directed to pass appropriate orders on the application for attachment, after hearing both sides, within a span of three weeks from the date of receipt of a copy of this judgment. Writ petition is disposed as above. Handover a copy of this judgment to the counsel for the petitioner on usual terms. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks