IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 28110 of 2007(U) ------------------------------------- O.S. NO.1566 OF 2005 OF PRL. MUNSIFF COURT, ERNAKULAM ................................ PETITIONER: ----------------- SAHADEVAN E.N., AGED 44 YEARS, S/O. NARAYANAN, ENCHIPARAMBIL HOUSE, KANDANAD P.O. MANAKUNNAM VILLAGE, KANAYANNOOR TALUK. BY ADV. SRI.M.S.UNNIKRISHNAN RESPONDENTS: ----------------------- 1. P.L.ANTONY, S/O. LONAPPAN, PAREPPARAMBIL, THEKKUMBHAGAM, TRIPUNITHURA, KANAYANNOOR TALUK. 2. SUJATHA T.K., AGED 32 YEARS, D/O. KRISHNANKUTTY, THATTANKUNNEL HOUSE, KANDANADU P.O., THIRUVAMKULAM, MANAKUNNAM VILLAGE, KANAYANNOOR TALUK. BY ADV. SRI.ABRAHAM P.GEORGE - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).28110/2007-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 24/03/2007 IN C.M.A. NO.41 OF 2006 ON THE FILE OF THE (2ND ADDITIONAL) COURT OF DISTRICT JUDGE, ERNAKULAM. EXT.P2: COPY OF THE ORDER DTED 12/07/2007 IN I.A. NO.5074 OF 2007 IN O.S. NO.1566 OF 2005 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM. EXT.P3: COPY OF THE I.A. NO.5075 OF 2007 IN O.S. NO.1566 OF 2005 FILED BY THE RESPONDENT NO.1 IN THE PRINCIPAL MUNSIFF COURT, ERNAKULAM EXT.P4: COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO.5075 OF 2007 IN O.S. NO.1566 OF 2005 IN THE PRINCIPAL MUNSIFF COURT, ERNAKULAM EXT.P5: COPY OF THE ORDER DATED 03/08/2007 PASSED IN I.A. NO.5075 OF 2007 IN O.S. NO.1566 OF 2005 BY THE PRINCIPAL MUNSIFF COURT, ERNAKULAM EXT.P6: COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO.5074 OF 2007 IN O.S. NO.1566 OF 2005 BEFORE THE PRINCIPAL MUNSIFF COURT, ERNAKULAM. EXT.P7: COPY OF THE PLAINT IN O.S. NO.1566 OF 2005 ON THE FILE OF THE PRINCPAL MUNSIFF COURT, ERNAKULAM. EXT.P8: COPY OF THE COUNTER AFFIDAVIT SUBMITTED BY THE 1ST RESPONDENT IN I.A NO.1520 OF 2006 IN O.S. NO.1566 OF 2005 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM. EXT.P9: COPY OF THE ORDER PASSED IN I.A. NO.1519 OF 2006 IN I.A. NO.10499 OF 2005 IN O.S. NO.1566 OF 2005 ON FILE OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM. EXT.P10: COPY OF THE ORDER PASSED IN I.A. NO.1520 OF 2006 IN I.A. NO.10499 OF 2005 IN O.S. NO.1566 OF 2005 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // Rs/ M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 28110 OF 2007 ------------------------------------------ Dated this the 8th day of July, 2008 JUDGMENT Petitioner was not a party to O.S. 1566 of 2005 on the file of Munsiff Court, Ernakulam. First respondent instituted that suit against second respondent claiming Rs.1,00,000/- with interest and costs contending that the amount was borrowed by the defendant and a cheque was issued later for its repayment, which was dishonoured. A petition for attachment before judgment under Rule 5 of Order XXXVIII of Code of Civil Procedure was filed. In the plaint in paragraph 3 the facts stated in the application under Rule 5 of Order XXXVIII was reiterated. The relief sought for is for realization of money charged upon the assets of the second respondent including her property which is scheduled in the plaint. An order of attachment was originally granted. Second respondent was directed to furnish security. That order was challenged before the appellate court. The appellate court vacated the order of attachment. Thereafter first petitioner filed two petitions; one to implead petitioner herein as the transferer of the property from second respondent and the other under Rule 17 of Order VI to WPC28110/07 2 amend the plaint. The amendment sought for under Ext.P3 petition is to add a plea that petitioner is not a bona fide purchaser and he purchased the property knowing that amount is due to first respondent from the second respondent and a declaration that alienation of the property in favour of first respondent of the charged property is not valid. Under Ext.P2 order petitioner was impleaded as additional defendant. Under Ext.P5 order the amendment petition was allowed. This petition is filed under Article 227 of Constitution of India challenging the said orders. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. As is clear from Ext.P4 the plaint in O.S. 1566 of 2005, suit is for realization of the amount from second respondent to the first respondent which was allegedly borrowed on 11.2.2004. As per the plaint allegation towards repayment of the amount, a cheque was issued by the second respondent which was subsequently dishonoured and a complaint was filed under Section 138 of Negotiable Instruments Act which ended in conviction and an appeal is pending. There is no case in the plaint that the property of the second respondent which was later purchased by the petitioner WPC28110/07 3 was offered as security. Therefore first respondent cannot claim that there is a charge in respect of the said property. Though originally there was an order of attachment, that was later vacated by the appellate court. In such circumstances learned Munsiff was not justified in impleading the petitioner herein as an additional defendant. When the suit is for realization of the money and first respondent has no case that plaint schedule property was either mortgaged or charged for the amount due from second respondent first respondent is not entitled to implead the assignee of the property of the second respondent even if that assignment is not bonafide. In such circumstances Ext.P2 order is quashed. Similarly when first respondent is not entitled to get decree charged on the property owned by second respondent, which was later assigned by second respondent to the petitioner, learned Munsiff should not have allowed first respondent to amend the plaint introducing the untenable plea . Ext.P2 and P5 orders are therefore quashed. The petitions to implead and amend the plaint stand dismissed. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE WPC28110/07 4 Okb/-