IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 OP(C).No. 437 of 2011(O) ------------------------------------ AGAINST THE ORDER DATED 11/01/2011 IN IA.76/2011 IN OS.15/2011 of SUB COURT, MAVELIKKARA .................... PETITIONER: -------------------- TENEBIE GEORGE ZACHARIAH, S/O.GEORGE ZACHARIAH, PALANGATTIL HOUSE, PANDANAD P.O., CHENGANNUR-689 506. BY ADV. SRI.S.MOHANAN RESPONDENT(S): ------------------------- HARIDAS KAIMAL, S/O.NARAYANA KAIMAL, CHENGANATH HOUSE, ELIKULAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT-686 577. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs K.T.SANKARAN, J. ------------------------------ O.P(C).No.437 OF 2011 ------------------------------ Dated this the 1 st day of February, 2011 JUDGMENT The petitioner filed O.S.15 of 2011 against the respondent for realisation of money. The plaintiff filed I.A.No.76 of 2011 for attachment before judgment of the tempo traveller in the ownership and possession of the defendant. The trial court passed the following order: “Heard. Issue Show Cause Notice to the respondent, why security should not be furnished. For return of notice to 11.2.2011.” The petitioner is aggrieved by the order in the sense that no order for conditional attachment was passed by the court below. 2. The order passed by the court below is legal and proper under Rule 5 of Order 38 of the Code of Civil Procedure. The court below was justified in issuing a show cause notice. It is O.P(C).No.437 OF 2011 2 true that the court could pass an order of conditional attachment under sub rule (3) of Rule 5. Whether a conditional order of attachment is to be granted or not, depends on the facts and circumstances of the case and it is in the realm of the discretion of the trial court. The court below thought that conditional order of attachment cannot be granted. In exercise of the jurisdiction under Article 227 of the Constitution of India, this court would not be justified in passing an order of conditional attachment. Moreover, the case is posted to 11.2.2011. The petitioner can, still, pray for appropriate orders in the application for attachment. No grounds are made out for interference. The Original Petition is, accordingly, dismissed. K.T.SANKARAN, JUDGE. cms