IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 29058 of 2008(H) -------------------------- AGAINST THE ORDER DATED 27/06/2008 IN IA 243/08 IN OS.87/2008 of MUNSIFF'S COURT, ETTUMANOOR .................... PETITIONER(S): --------------- C.O.MARYKUTTY, W/O.P.M.BABY, PAYYAPPALLIL HOUSE, THURUTHIPPALLI BHAGOM, NEEZHOOR KARA, KADUTHURUTHY, KOTTAYAM. BY ADV. SRI.GEORGE JOSEPH (ITTANKULANGARA) RESPONDENT(S): --------------- 1. VASUDEVAN, S/O.NARAYANAN, CHERANALLOOR HOUSE, KULASEKHARAPURAM KARA, KADUTHURUTHY VILLAGE. 2. JAYADEVAN, S/O.VASUDEVAN, CHERANALLOOR HOUSE, KULASEKHARAPURAM, KADUTHURUTHY VILLAGE. 3. GIRIJAMMA, PADMALAYAM HOUSE, KULASEKHARAPURAM, KADUTHURUTHY VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.29058 of 2008 H -------------------------------------- Dated this the 21st day of October, 2008. JUDGMENT Heard. 2. Petitioner/plaintiff in O.S.No.87 of 2008 on the file of Munsiff's Court, Ettumanoor is aggrieved by the order in I.A.No.243 of 2008 for attachment of property and invokes the power of this Court under Article 227 of the Constitution. 3. The facts of the case in short are thus. Petitioner/plaintiff entered into an agreement with the first defendant for purchase of the property belonging to the latter and paid certain amount as advance. Petitioner instituted O.S.No.87 of 2008 for realisation of the advance amount. Petitioner wanted to attach the property allegedly agreed to be sold to her. Learned Munsiff issued an order of attachment. Respondents/defendants challenged that order before the District Court, Kottayam in C.M.Appeals. Learned District Judge found that the attachment is contrary to the provisions of Order XXXVIII Rule 5 of the Code of Civil Procedure (for short, 'the Code'). On that ground and as well as other grounds, learned District Judge allowed the C.M.Appeals and set aside the order of attachment. Application for attachment was dismissed. Thereafter petitioner filed I.A.No.243 of 2008 for attachment incorporating in the affidavit the source of information and the attempt of first respondent/first defendant to WP(C) No.29058/2008 2 sell the property. Learned Munsiff dismissed that application. That order is challenged in this proceedings. It is contended by learned counsel that the order under challenge is illegal. 4. It is conceded that the property which was the subject matter of the alleged agreement for sale was sold to the third defendant even before the filing of the suit and as stated in the impugned order, after the expiry of the period of agreement. If the property was sold even before filing the suit, first respondent/first defendant had no title over the property as on the date of suit. There is no privity of contract between the petitioner/plaintiff and the third respondent/third defendant. Therefore, that property cannot be attached for the amount said to be due to the petitioner from the first respondent Learned Munsiff is justified in dismissing the application. 5. Counsel contends that the petitioner has a charge over the property, that charge would remain even after transfer by the first respondent but the third respondent is trying to alienate the property. That question does not arise for consideration in this proceedings and is left open. There is no illegality or irregularity in the order under challenge. Writ Petition is dismissed. THOMAS P.JOSEPH, JUDGE. cks