P. J. James v. M. K. Kuruvila

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 24TH DAY OF MAY 2016/3RD JYAISHTA, 1938** **OP(C).No. 1024 of 2016 (O) ---------------------------** **(IA 390/2016 IN OS 374/2013 OF SUB COURT, ERNAKULAM DATED 2.4.2016)** **PETITIONER/PETITIONER/DEFENDANT:** **--------------------------------** **P.J.JAMES** **AGED 56 YEARS, S/O PANDARAPARAMBIL JOSEPH, PANDARAPARAMBIL HOUSE, MULAVUKAD, MULAVUKAD VILLAGE, KANAYANNUR TALUK, ERNAKULAM.** **BY ADVS.SRI.PAUL K.VARGHESE SMT.A.A.GEETHA SRI.K.P.S.JALALUDDEEN MOHMMED** **RESPONDENT/RESPONDENT/PLAINTIFF: --------------------------------** **M.K.KURUVILA S/O. LATE M.C.KURUVILA, AGED 56 YEARS, NO. 843, 15TH MAIN, 3RD BLOCK, KORAMANGLA, BANGALORE-560034.** **R1 BY ADV. SMT.PRABHA R.MENON R1 BY ADV. SRI.MANOJ R. NAIR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24-052016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 1024 of 2016 (O) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------P1 - TRUE COPY OF THE PLAINT IN OS NO. 374/2015 ON THE FILE OF SUB COURT, ERNAKULAM DATED 27-5-2013.** **P2 - TRUE COPY OF IA NO. 2641/2013 IN OS NO. 374/2013 OF THE SUB COURT, ERNAKULAM DATED 30-5-2013.** **P3 - TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN IA 2641/2013 IN OS 374/2013 DATED 10-6-2013.** **P4 - TRUE COPY OF THE PETITION AS IA NO. 4251/2015 IN OS NO. 374/2013 OF SUB COURT, ERNAKULAM DATED 19-10-2015.** **P5 - TRUE COPY OF OBJECTION FILED BY RESPONDENT/PLAINTIFF IN IA 4251/15 IN OS 374/13 OF SUB COURT, ERNAKULAM DTD 10-11-15.** **P6 - TRUE COPY OF THE ORDER IN IA NO. 4251/2015 IN OS NO. 374/2013 OF SUB COURT, ERNAKULAM DATED 13-11-2015.** **P7 - TRUE COPY OF THE JUDGMENT IN OP(CIVIL) NO. 3086/2015 OF THIS COURT DATED 16-12-2015.** **P8 - TRUE COPY OF THE ORDER IN IA NO. 390/2014 IN OS NO. 374/2013 OF THE SUB COURT, ERNAKULAM DATED 2-2-2016.** **RESPONDENT(S)' EXHIBITS : NIL** **-----------------------** ## **OKB** **// True copy //** **P.A. to Judge** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## O.P.(C). No.1024 of 2016 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 24[th] day of May, 2016 JUDGMENT ~ ~ ~ ~ ~ The petitioner herein is the defendant and the respondent herein is the plaintiff in O.S.No.374/2013 on the files of the Sub Court, Ernakulam. The challenge in this O.P. is against Ext.P8 order passed in I.A. No.390/2016 in the above original suit filed by the respondent herein. The above application was filed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure (for short 'the CPC') seeking an order of temporary injunction restraining the petitioner from alienating or encumbering the plaint schedule properties. It is the case of the respondent in the original suit that a sum of Rs.1,54,00,000/- with interest is due from the petitioner. The application is filed on the apprehension that the petitioner intends to alienate and encumber the plaint schedule **OP(C).1024/16-O :2:** property to defeat the decree that may be passed in favour of the respondent. 2. The petitioner filed an objection denying the aforesaid apprehension and contended that the plaint claim is only Rs.1,54,00,000/-. But, the total value of the property is Rs.15 crores and the plaint schedule property consists of five items and there is no need to pass injunction covering the entire property. 3. After considering the rival contentions, the court below passed the impugned order restraining the petitioner from alienating or encumbering the plaint schedule property. The legality and propriety of the findings, whereby the court below restrained the petitioner from alienating the property, are under challenge in this original petition. 4. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 5. The learned counsel for the respondent contended that the impugned order is an appealable **OP(C).1024/16-O :3:** order in terms of Order XLIII Rule 1(r) of the CPC, and if an order is appealable under the CPC, the powers of this Court under Article 227 of the Constitution of India are very limited. In support of the said argument, the learned counsel cited Shalini Shyam Shetty v. Radhendra Sankar Patil [2010 (3) SCC 329] and Gbots Software Development Centre Pvt. Ltd. (PCS India) and Another v. LBS Software Services Pvt. Ltd, Trivandrum [2015 (3) KHC 668]. 6. Per contra, the learned counsel for the petitioner submits that even if alternative and efficacious remedies are available, the O.P., challenging the order passed on an application filed under Order XXXIX Rule 1 and 2, is maintainable under Article 227 of the Constitution of India. In support of the said argument, the learned counsel for the petitioner cited Prabhakaran v. Sajini and Others [2010 (1) KHC 142], Mohammed Shabeer v. Sukumaran and Others [2012 (3) KHC 108] and Basheer M. Picha and **OP(C).1024/16-O :4:** Another v. Indian Bank [2013 (2) KHC 425]. 7. In view of the rival contentions, this Court is inclined to consider the maintainability at first. Going by the decisions cited by the learned counsel for the petitioner as well as the learned counsel for the respondent, it stands undisputed that the O.P., challenging the order passed by the Sub Court, is maintainable under Article 227 of the Constitution of India, as the availability of alternative remedy would not make an absolute bar against invocation of jurisdiction and power under Article 227 of the Constitution of India. But, the Apex Court has laid down the parameters under which the said O.P. is maintainable under Article 227 of the Constitution. So, the only question to be considered in this O.P., as a preliminary issue, is, whether the impugned order would fall within the parameters laid down by the Apex Court. 8. In Shalini Shyam Shetty's case (supra), the Apex **OP(C).1024/16-O :5:** Court held that wherein the jurisdiction of High Court under Article 227 of the Constitution of India have been settled to the effect that the High Court cannot, at the drop of a hat in exercise of its power of superintendence under Article 227 of the Constitution of India to interfere with the orders of the Tribunals or courts inferior to it. Nor can it in the exercise of this power act as a court of appeal over the orders of courts or tribunals subordinate to it. In the decision cited by the learned counsel for the petitioner also it is specifically held that when an error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby, this Court has power to invoke supervisory jurisdiction under Article 226 of the Constitution of India. 9. The proposition that can be culled out from the above decision is that this Court is not inclined to **OP(C).1024/16-O :6:** invoke supervisory jurisdiction under Article 227 of the Constitution of India, unless there is any kind of perversity in the findings or jurisdictional infirmity or grave injustice or gross failure of justice. Coming to the instant case, the respondent filed an application under Order XXXIX Rule 1 and 2 of the CPC on an apprehension that an amount of Rs.1,54,00000/with interest is due from the petitioner; but, it is learnt that the petitioner is making preparation to alienate or encumber the plaint schedule property with an intent to defeat the decree that may be passed in his favour. 10. It is true that, earlier, the trial court passed an order attaching the said property and the same was challenged before this Court by an appeal and this Court passed Ext.P7 judgment stating that since there is a charge on the plaint schedule property under Section 55(6)(b) of the Transfer of Property Act, it was unnecessary for the court to attach the properties and **OP(C).1024/16-O :7:** the court below was directed to consider the application filed by the petitioner to lift the attachment afresh and pass orders. Thereafter, the said objection was considered by the court below and lifted the attachment. 11. The learned counsel for the petitioner submits that the impugned order is not sustainable in view of Ext.P7 judgment passed by this Court. But, I am unable to accept the said argument because the said observation was made on the basis of a specific provision under the Transfer of Property Act. But, here, the basis of application under Order XXXIX Rule(1) is the apprehension of the respondent that the defendant intends to remove or dispose of his property with a view to defraud him. Therefore, the observations made in Ext.P7 will not stand in the way of considering the application under Order XXXIX Rule 1 and 2 of the CPC. 12. Then the point is, whether there is any **OP(C).1024/16-O :8:** jurisdictional infirmity or perversity or illegality in any of the findings in the impugned order. 13. Going by Order XXXIX Rule 1(b) of the CPC, it is stated that where in any suit it is proved by affidavit or otherwise that the defendant threatens, or intends to remove or dispose his property with a view to defraud his creditors, a temporary injunction can be granted. Here, the specific case of the respondent is that with an intent to defeat the decree that may be passed against him, the petitioner intends to remove and encumber the plaint schedule property. Therefore, the application falls well within the law under Order XXXIX Rule 1 and 2, and after considering the rival pleas the court below found that the apprehension expressed by the respondent is sustainable and in that view of the matter the application was allowed. The court below specifically held that having regard to the facts and circumstances of the case the court finds that if the property is alienated, the decree which may **OP(C).1024/16-O :9:** be passed cannot be executed as the decree amount is huge. Hence the petitioner was restrained from alienating the property. I do not find any kind of jurisdictional infirmity or perversity in any of the findings in the impugned order. 14. Hence, this O.P. will stand dismissed as not maintainable before this Court. However, it is submitted that the case is posted in the list of 7.7.2016. The court below is directed to dispose the case, untrammelled by any of the observations made in the impugned order or this judgment. This O.P.(Civil) is dismissed. Sd/- K. HARILAL, JUDGE okb/24.5