IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WP(C).No. 2090 of 2009(W) ------------------------- I.A.NO.4132/2008 IN OS.979/2008 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): ------------------------- R.RAMANAN, S/O.RAJAN, AGED 48 YEARS, ELANGATHU KIZHAKKATHIL, MANAYIKULANGARA CHERRY, KOLLAM. BY ADVS. MR.P.B.SURESH KUMAR, MR.K.P.SUJESH KUMAR. RESPONDENT(S): --------------------------- P.L.PRASANNA, D/O.LAKSHMIKUTTY, AGED 55 YEARS, SREEPARVATHY, SAKTHINAGAR - 187, SAKTHIKULANGARA P.O., KOLLAM. BY ADVS. MR.V.V.RAJA, MR.R.RANJITH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2090/2009 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AGREEMENT EXECUTED BY THE RESPONDENT DTD. 31/08/2008. P2: COPY OF NOTICE DTD. 28/10/2008. P3: COPY OF THE PLAINT IN O.S.NO.979/2008 ON THE FILES OF THE SUB COURT, KOLLAM DTD. 29/11/2008. P4: COPY OF I.A.NO.4132/2008 IN O.S.NO.979/2008 DTD.29/11/2008. P5: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.4132/08 IN O.S.979/2008 DTD. 19/12/2008. P6: COPY OF THE ORDER IN I.A.NO.4132/2008 IN O.S.NO.979/2008 DTD. 9/01/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.2090 OF 2009 (W) ----------------------------------- Dated this the 23rd day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to set aside Ext.P6 order dated 9.1.2009 in I.A.No.4132/2008 in O.S.No.979/2008 on the file of Princpal Sub Judge, Kollam. ii. to allow Ext.P4 application, viz. I.A.No.4132/2008 in O.S.No.979/2008 on the file of Principal Sub Judge, Kollam as prayed for. iii. to issue such other further reliefs as this Honourable Court deem fit and proper to grant in the circumstances of the case. 2. Petitioner is the plaintiff in O.S.No.979/2008 on the file of the Principal Sub Court, Kollam. Respondent is the defendant in that suit. Suit was one for money based on an agreement of sale. Along with the suit, the plaintiff moved an WPC.2090/09 2 application for interim attachment before judgment of the property covered by the agreement of sale, setting forth a case that inorder to deprive the plaintiff the benefits of the decree that is likely to be passed in his favour, the defendant intends to remove or alienate that property and leave the jurisdiction of this Court. Before instituting the suit, the plaintiff had issued an advocate notice and, it is the case of the plaintiff, that after acknowledging the notice, it was not responded even with reply. The defendant entering appearance filed counter to the application moved by the plaintiff under Order XXXVIII Rule 5 of CPC impeaching the validity of the agreement of sale contending that it is a forged and fabricated document. The allegations raised to seek the relief of interim attachment before judgment were also denied by the defendant. The learned Sub Judge, after hearing both sides formed a conclusion that the agreement is not a genuine one after comparing the signature of the defendant in the agreement with those appearing in his acknowledgment accepting the suit notice issued by the plaintiff, vakalath and also the objections filed to the application. Propriety and WPC.2090/09 3 correctness of that order is impeached by the plaintiff filing this writ petition invoking the supervisory jurisdiction of this Court vested under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Having regard to the submissions made and also perusing the impugned order, I find the order cannot be sustained for the reason that the learned Sub Judge has not applied his mind or directed an enquiry that was required in examining an application moved under Order XXXVIII Rule 5 CPC. The essential conditions to be satisfied for granting the relief in an application under Order XXXVIII Rule 5 of CPC are based on the satisfaction that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,- (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, WPC.2090/09 4 In examining that question, the fair chances of getting a decree based on the suit claim by the plaintiff also has to be assessed. The merit of the case canvassed by the plaintiff and the defense put forward by the defendant to resist that claim are all matters to be considered in the trial after affording reasonable opportunity to both sides to establish their respective case. The enquiry in an application under Order XXXVIII Rule 5 of CPC must confine within the parameters covered by that rule, and at that stage, it is not proper for the court to express any definite opinion on the basic document produced on which the suit claim is based as whether it is a genuine or a forged document. Ext.P6 order would show that the learned Sub Judge has not adverted to the conditions necessary for satisfaction of the application under Order XXXVIII Rule 5 of CPC nor even directed any enquiry to examine the merit of the application to find out whether the petitioner/plaintiff has made out a case for that relief. Some of the observations made in the order to the effect that the agreement of sale is not genuine, that too, based on the comparison of the signature of the defendant WPC.2090/09 5 with those made subsequent to the alleged execution of that agreement, to say the least, are exceptionable and should have been avoided. Setting aside Ext.P6 order, I direct the learned Sub Judge to examine the application in the light of the observations made above and in accordance with law and pass orders afresh within a period of one month from the date of receipt of a copy of this judgment. Send a copy of this judgment to the court below forthwith and issue copy to the counsel on both sides on usual terms. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009