IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 15748 of 2009(O) --------------------------------------- OS.NO.103/2009 OF II ADDL.SUB COURT,TRIVANDRUM. .................... PETITIONER: ------------------- SHAJIDEEN,S/O.MOIDEEN PICHA, PULICKA PARAMBIL,AMBALA NAGAR, VATTAPPARA P.O.,THIRUVANANTHAPURAM. BY ADVS. MR.V.SURESH, MR.G.SUDHEER. RESPONDENTS: ------------------------ 1. BASHEER M.PICHA,S/O.MOIDEEN PICHA, BAINDS,128,ABAYA NAGAR,PEROORKADA, LATEX ROAD,THIRUVANANTHAPURAM. 2. INDIRA BASHEER,W/O.BASHEER, BAINDS,128,ABAYA NAGAR,PEROORKADA, LATEX ROAD,THIRUVANANTHAPURAM. R2 BY ADVS. MR.K.SHAJ, MR.SAJJU.S. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.15748 of 2009 - O --------------------------------- Dated this the 26th day of June, 2009 J U D G M E N T This writ petition is filed by the plaintiff in O.S.No.103/2009 on the file of the Additional Sub court, Thiruvananthapuram. Suit is one for recovery of money. Respondents are the defendants in the suit. First respondent is the brother of the plaintiff and second respondent, the wife of first respondent. The case of the plaintiff in short is that pursuant to power of attorney executed by both the respondents, he had expended his funds to discharge the liability of those respondents and he is thus entitled to have the refund of such sum, for which the suit was laid. With the suit, petitioner/plaintiff moved an application under Order XXXVIII Rule 5 CPC seeking interim order of attachment of the property, having an extent of 38 cents, belonging to the first respondent. Respondents filed objections in which disputing the case of the plaintiff and the relief claimed for interim attachment of the property of the first respondent, it was stated that the schedule property will not be alienated till the disposal of the suit. W.P.(C).No.15748 of 2009 - O 2 The learned Sub Judge, after hearing the counsel on both sides and appreciating the materials produced, dismissed the application for attachment. Impeaching the propriety and correctness of that order, petitioner/plaintiff has filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. 3. The learned counsel for the respondents submitted that the first respondent shall file an affidavit before the court that the property sought to be attached will not be alienated or further encumbered till the disposal of the suit. It is submitted that at present there is some encumbrance at present over that property. 4. Having regard to the submissions made and the facts and circumstances presented, I find that filing of such affidavit by the the first respondent would suffice the ends of justice. The learned counsel for the petitioner also submits that he will be satisfied with filing of such an affidavit. The first respondent shall file an affidavit before the court below as represented by his W.P.(C).No.15748 of 2009 - O 3 counsel within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Send a copy of the judgment to the court below, and hand over a copy to the counsel on both sides on usual terms. S.S.SATHEESACHANDRAN, JUDGE. bkn/-