IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 OP(C).No. 774 of 2011(O) ORDER DATED 5.1.2011 IN I.A.NO.1550 OF 2010 IN OS.220/2008 OF SUB COURT, PATHANAMTHITTA PETITIONER ------------------------------ M.V.BALAN, S/O.ABRAHAM, THEKKETHADATHIL HOUSE, KUMPAZA P.O., KUMPAZA MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN-689 691. BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENTS: --------------- 1. STATE BANK OF TRAVANCORE REPRESENTED BY ITS BRANCH MANAGER, MALLASSERY BRANCH, PATHANAMTHITTA DISTRICT, PIN-689 691. 2. GENERAL MANAGER P A D (CLERICAL), INDIAN OVERSEAS BANK, CENTRAL OFFICE, CHENNAI, TAMILNADU STATE-293 653. STANDING COUNSEL FOR SBT SRI.K.S.DILIP THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 774 OF 2011 O ------------------------------------------------------ Dated this the 25th day of February, 2011 JUDGMENT The petitioner is the first defendant in O.S.No.220 of 2008, on the file of the Court of the Subordinate Judge of Pathanamthitta. The suit was filed by the first respondent, State Bank of Travancore, for realization of money due to the Bank. The second respondent is the guarantor in the loan transaction. The loan was availed for purchasing a Maruti car. The loan amounts were not repaid and therefore, the suit was filed. 2. I.A.No.1550 of 2010 was filed by the plaintiff under Order XXXVIII Rule 5 of the Code of Civil Procedure for attachment before judgment. The attachment sought for was the Death-cum Retirement Benefit amount, which will be payable to the first defendant (petitioner) on his retirement from the Indian Overseas Bank. The court below passed an order dated 5.1.2011, the operative portion of which reads as follows: O.P.(C) NO.774 OF 2011 O :: 2 :: “Accordingly, petition is allowed. Issue notice to the respondents to furnish security to the tune of Rs.2,02,981/- and to appear and show cause, why they should not furnish security. In the meanwhile, there will be a conditional attachment of the petition schedule amount. The second respondent garnishee is hereby prohibited from giving the above amount to the 1st respondent.” 3. The order dated 5.1.2011 in I.A.No.1550 of 2010 is not a final order. The court has issued show cause notice. A conditional order of attachment was also passed under sub-rule (3) of Rule 5 of Order XXXVIII of the Code of Civil Procedure. The petitioner is entitled to show cause before Court why the attachment should not be made. After hearing both parties, the Court has to pass an order under Rule 6 of Order XXXVIII of the Code of Civil Procedure. An order passed under Rule 6 of Order XXXVIII is appealable under Order XLIII Rule 1(q) of the Code of Civil Procedure. Therefore, at this stage, it is not necessary to entertain the Original Petition. The petitioner has an effective remedy. The Court has not finally decided the matter. Therefore, the prayer to quash Ext.P1 order dated 5.1.2011 in I.A.No.1550 of 2010 is hereby rejected. O.P.(C) NO.774 OF 2011 O :: 3 :: 4. The plaintiff Bank also initiated proceedings under the Securitisation and Recostruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the car belonging to the petitioner was attached. As per Ext.P2 notice dated 28.1.2011, a publication was effected for auction sale of the car. Prayer (ii) in the Original Petition relates to Ext.P2. As regards Ext.P2, the petitioner has an alternative remedy under Section 17 of the Securitisation and Recostruction of Financial Assets and Enforcement of Security Interest Act, 2002. Therefore, I am not inclined to entertain the Original Petition in respect of the challenge against the auction sale of the Maruti car. With the above observations, the Original Petition is disposed of. (K.T.SANKARAN) Judge ahz/