IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 WP(C).NO. 20024 OF 2010(O) ----------------------------------------- OS.318/2010 OF ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER(S): ----------------------- ANILKUMAR,S/O.NARAYANAN, KOORIKKAL HOUSE,MUKUNDAPURAM TALUK, THIRUMUKKULAM VILLAGE,THIRUMUKKULAM DESOM, THRISSUR DISTRICT. BY ADV. SRI.M.N.MANOJ SRI.V.C.VALSAN RESPONDENT(S): -------------------------- VINODKUMAR,S/O.UNNIKRISHNAN, ALOOPARAMBIL HOUSE,MUKUNDAPURAM TALUK, THAZHEKKAD DESOM,THAZHEKKAD VILLAGE, THRISSUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.20024 of 2010 ==================================== Dated this the 29th day of June, 2010 J U D G M E N T Respondent in I.A. No.1865 of 2010 in O.S. No.318 of 2010 of the court of learned Additional Sub Judge, Irinjalakuda challenges Ext.P13, order dated 18.6.2010 directing him to furnish security for the sum of Rs.4,82,200/-. It is not disputed that there was an agreement for sale between petitioner and respondent as per which petitioner agreed to sell the stage carriage belonging to him to the respondent. It is also not disputed that petitioner received a sum of Rs.4,82,000/- on various occasions by way of advance from the date of agreement as revealed by the endorsements in Ext.P1. It is also not disputed that at the time of Ext.P5, agreement the vehicle was given to the respondent with all vehicular documents and since then respondent was plying the vehicle. Since respondent did not pay the balance amount petitioner took possession of the vehicle and filed a suit against respondent to restrain him from obstructing plying of the vehicle. While so respondent filed present suit for recovery of advance paid (Rs.4,82,200/-) and certain further amount which according W.P(C) No.20024 of 2010 -: 2 :- to the respondent he had to spent for repair of the vehicle at the time he was operating the vehicle. Respondent filed I.A. No.1865 of 2010 for attachment of the vehicle apprehending that petitioner may dismantle, alienate or remove the vehicle from the local limits of jurisdiction of the court concerned. No conditional order of attachment was passed. Petitioner preferred his objection to the application where he undertook that he will not transfer the vehicle. Learned Sub Judge as per the impugned order directed petitioner to furnish security for the admitted sum of Rs.4,82,000/-. Learned counsel for petitioner contends that the said order is illegal in so far as the court gets jurisdiction to direct petitioner to furnish security or order attachment only if requirements of Order XXXVIII Rule 5 of the Code of Civil Procedure (for short, “the Code”) are satisfied which is conspicuously lacking in the impugned order and hence the order under challenge is vitiated. It is also contended by learned counsel that there is nothing on record to show that apprehension of respondent as to petitioner attempting to transfer the vehicle is genuine in that petitioner has made an undertaking in the court below that he will not transfer the vehicle. Learned counsel has placed reliance on the decisions in W.P(C) No.20024 of 2010 -: 3 :- Ratnamma Pillai Deepa v. Govinda Pillai Gopala Pillai (1995 [2] ILR [Ker.] 354, paragraph 9) and Wood’s Hotel Pvt. Ltd v. Prasant Kumar Panigrahy (1998 [1] KLT 149, paragraph 11). In response learned counsel for respondent contended that this Court has to look into the circumstances in which suit happened to be filed and that order to furnish security is not for the entire plaint claim of Rs.8,49,200/- but only for the sum of Rs.4,82,200/-. According to the learned counsel in the affidavit in support of I.A. No.1865 of 2010 it has been specifically averred by the respondent about intention of petitioner to dispose or remove the vehicle from the territorial limits of jurisdiction of the court below. It is contended that the vehicle is subject to a hypothecation agreement in which case it is open to the financier to seize the vehicle at any time notwithstanding the undertaking made by petitioner. According to learned counsel there is no reason why this Court should interfere with Ext.P13, order in so far as it is only an order to furnish security and if at all security is not furnished court has to pass an order under Rule 6 of Order XXXVIII of the Code which petitioner can challenge in appropriate proceeding. 2. No doubt notwithstanding that plaint claim is for W.P(C) No.20024 of 2010 -: 4 :- Rs.8,49,200/-, court below has directed security to be furnished only for the admitted sum of Rs.4,82,000/-. But the order comes under Rule 5 of Order XXXVIII of the Code. In the decisions relied on by learned counsel for petitioner it is held that power to order attachment is an extraordinary power and that court has to grant the same with care and caution. Court gets that power when it is satisfied on the materials that conditions requisite for ordering attachment are complied. Satisfaction of the court should be reflected in the order which the court passed. It is stated that before issuing an order of attachment court must be satisfied that “the defendant is about to dispose of whole or any part of his property or to remove whole or any part of his property from the jurisdiction of the court”. 3. That, petitioner may have a remedy to challenge the order of attachment under Rule 6 of Order XXXVIII of the Code in case petitioner failed to furnish security as ordered as per Ext.P13 is a different matter. If the impugned order is illegal or it is the result of irregular exercise of jurisdiction it is certainly within the supervisory power of this Court to invoke power under Article 227 of the Constitution of India. Binding decisions on the point which I have referred to above say that before the court proceeds under W.P(C) No.20024 of 2010 -: 5 :- Order XXXVIII Rule 5 of the Code it must be satisfied that circumstances stated therein do exist and further that such satisfaction must reflect in the order passed by the court. I have gone through the order under challenge. I was not able to find any finding entered by the learned Sub Judge that circumstances stated in Order XXXVIII existed so that petitioner could be directed to furnish security. 4. Learned counsel for respondent has an argument that the order passed is only to furnish security and there is no order for attachment of the vehicle as of now. But to direct a party to furnish security which is a prelude for passing an order of attachment requirements of Order XXXVIII Rule 5 are to be satisfied. In so far as that has not been done the order under challenge suffers from an illegality and a jurisdictional error in directing petitioner to furnish security. Learned counsel for respondent has expressed an apprehension that petitioner might dispose of the vehicle or even the financier may take custody of the vehicle. I direct that until the application is disposed of by the learned Sub Judge undertaking made by the petitioner that he will not remove the vehicle from the local limits of the jurisdiction of court below will remain in force. W.P(C) No.20024 of 2010 -: 6 :- Resultantly, this Writ Petition is allowed. Impugned order (Ext.P13) is set aside and I.A. No.1865 of 2010 is remitted to the court below for fresh disposal as provided under law. Considering the urgency of the situation learned Sub Judge is directed to expedite disposal of the application. Until disposal of that application undertaking made by petitioner in the court below will remain in force. I also direct that until disposal of the application petitioner shall not transfer vehicular records to anybody. THOMAS P. JOSEPH, JUDGE. vsv