IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 WP(C).No. 13460 of 2008(B) -------------------------- I.A.No.2190/2008 in OS.1003/2007 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: -------------- O.V.PRASANNAN, AGED 41 YEARS, S/O.VELAPPAN, ONAKKAVIL HOUSE, MULANTHURUTHY P.O., ERNAKULAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.M.F.MOHAMMOD SIYAD RESPONDENT: ------------- INDU I.P., AGED 39 YEARS, W/O.SATHEESH, LAKSHMI MANDIRAM, H.M.T.COLONY P.O., KALAMASSERY, THRIKKAKARA NORTH VILLAGE, NOW RESIDING AT 'NANDIKESH', SHENOY ROAD, KALOOR P.O., ERNAKULAM. BY ADV. SRI.P.K.BALAKRISHNAN NAIR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/05/2008 ALONG WITH W.P(C)13463/08 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.13460 &13463 OF 2008 =========================== Dated this the 23rd day of May, 2008 JUDGMENT Defendant in O.S.1002/07 & 1003/07 on the file of Sub Court, Ernakulam are the petitioners. Those suits were filed by the respective respondents for realisation of the amount allegedly obtained by petitioner from the respondents. Respondents are mother and daughter. Petitioner is a producer of a film. According to respondents, for the purpose of creation of the film as its producer, petitioner borrowed Rs.10 lakh each from the respondents and the amount was not paid inspite of demand. Petitioner denied the transaction and the liability. Along with the suit a petition under Rule 5 of Order XXXVIII of Code of Civil Procedure, for attachment of the negatives of the film “SMS” A Short Message for Sweet Hearts” produced by the petitioner was sought before judgment. Another petition was filed under Order XXXIX Rule 1 of Code W.P.(C) 13460/08, 13463/08 2 of Civil Procedure restraining petitioner from releasing the film till sufficient security for the satisfaction of the decree is furnished by the petitioner. Learned Sub Judge passed orders in the application directing petitioner to furnish security and also restraining him from releasing the film till the security is furnished. Thereafter petitioner filed I.A.2190/2008 and I.A.2192/08 for appointment of an Advocate Commissioner to oversee the release of the film with a direction to collect the entire receivable amount to the extent of the amount claimed by respondents in the suits. In addition an order vacating the order of attachment and injunction was sought. The petition was opposed by respondents. Under Ext.P9 common order learned Sub Judge dismissed the applications which are challenged in these respective petitions. 2. Learned counsel appearing for petitioners and respondents were heard. 3. As rightly pointed out by the learned W.P.(C) 13460/08, 13463/08 3 counsel appearing for respondents, if the order of injunction granted by the trial court is to be vacated, an application is to be filed as provided under Rule 4 of Order XXXIX or petition is to be heard. No such petition was filed. If such a petition is filed and disposed, remedy is to file an appeal as against that order. Therefore by incorporating a prayer in these petitions, petitioner is not entitled to get the order vacated. Therefore the only point that survives is the question of appointment of the Commissioner. Under Ext.P9 order, learned Sub Judge dismissed the application holding that petitioner had earlier offered to furnish security, but security is not furnished and because of the volatile nature of the film industry it is not possible to realise sufficient amount to cover the suit claim. The question is whether the order warrants interference. 4. The order of attachment as provided under Rule 5 of Order XXXVIII is contemplated to enable W.P.(C) 13460/08, 13463/08 4 plaintiffs in a suit to realise the fruits of the decree if any is to be passed in the suit. What is to be attached is the property, whether movable or immovable, so that after passing of the decree it is available for realisation of the decree debt. What is sought to be attached in this case is the negatives of the film. As a result the film cannot be released. I do not find the purpose that could be achieved by attaching the negatives of the film and thereby preventing the release of the film. If ultimately the suit is to be disposed after 10 or 15 years, by retaining the negatives of the film, I do not think that plaintiffs would be able to realise the decree debt by proceeding against the negatives of the film at that stage. Therefore it is in the interest of respondents plaintiffs to see that sufficient security is there, so that if a decree is to be passed in the suits, fruits of the decree could be enjoyed. The argument of the learned counsel appearing for respondents is that if the film is released, then W.P.(C) 13460/08, 13463/08 5 the amount will be appropriated by the distributor and nothing will be available for utlimate realisation to the plaintiffs. Learned counsel appearing for petitioners submitted that if an Advocate Commissioner is appointed who may act as distributor, he can collect whatever amount could be collected by releasing the film and in that case interest of the petitioner as well as the respondents will be better served. Unfortunately this aspect was not considered by the trial court. Trial court did not consider the question whether it is feasible to realise the amount claimed in the suit by release of the film by appointment of a Commissioner. Instead considering the volatile nature of the film industry, the petitions were dismissed. In such circumstance, Ext.P9 order is set aside. The learned Sub Judge is directed to consider the application afresh after hearing the parties. Parties are directed to appear before the learned Sub Judge on 2.6.08. Learned Sub Judge to pass appropriate orders in accordance with law. W.P.(C) 13460/08, 13463/08 6 Writ Petitions are disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006