Rasmi and Suraj v. Surjith, Jishnu, Frijo and Vineeshkumar (deleted) - OP(C).No.1156/2020; OS 253/2019, Sub Court, Irinjalakuda

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942** ## **OP(C).No.1156 OF 2020** **OS 253/2019 OF PRINCIPAL SUB COURT,IRINJALAKUDA** ## **PETITIONERS:** |**1**|**RASMI**| |---|---| ||**AGED 33 YEARS**| ||**W/O. KOLLIKKARA SOORAJ, NANDIPULAM DESOM, NANDIPULAM**| ||**VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT**| |**2**|**SURAJ,**| ||**AGED 37 YEARS**| ||**S/O. KOLLIKKARA SATHYAN, NANDIPULAM DESOM, NANDIPULAM**| ||**VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT**| ||**BY ADV. SRI.V.M.KRISHNAKUMAR**| ## **RESPONDENTS:** |**1**|**SURJITH**| |---|---| ||**AGED 34 YEARS**| ||**S/O.KOLLIKKARA SATHYAN, NANDIPULAM DESOM, NANDIPULAM**| ||**VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT,PIN-680 312**| |**2**|**JISHNU,**| ||**S/O.CHAKKANATH SURESH, CHAMAKKALA DESOM, CHENDRAPPINNI**| ||**VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT,PIN-680**| ||**687**| |**3**|**FRIJO**| ||**AGED 32 YEARS**| ||**S/O.KAROOKKARAN ANTHONY,NANDIPULAM DESOM, NANDIPULAM**| ||**VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT**| |**4**|**VINEESHKUMAR (deleted)**| ||**AGED 35 YEARS**| ||**S/O.PANIYATH SUDHAKARAN, VADAKKUMMURI DESOM,**| ||**VARANDARAPPILLY VILLAGE, CHALAKUDY TALUK, THRISSUR**| ||**DISTRICT,PIN-680 570**| ||**(4TH RESPONDENT IS DELETED FROM PARTY ARRAY VIDE ORDER**| ||**DTD 07/10/2020 IN IA NO 2/2020)**| ## **R1 BY SRI.B.RAMACHANDRAN, CGC** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-12-2020, THE COURT ON 14-12-2020 DELIVERED THE FOLLOWING:** O.P.(C) No.1156/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ O.P.(C) No.1156 of 2020 ------------------------------------------------Dated this the 14[th] day of December, 2020 ## **J U D G M E N T** The petitioners are the plaintiffs and the respondents are the defendants in the suit O.S.No.253/2019 on the file of the Sub Court, Irinjalakuda. 2. The suit is for granting a decree for realisation of money as damages from the defendants. The plaintiffs have claimed an amount of Rs.39,90,690/- from the defendants with interest at the rate of 12% per annum from the date 01.09.2017. The total amount claimed in the suit comes to Rs.50,88,127/-. 3. As per the averments in the plaint, on 01.09.2017, at midnight, pursuant to a conspiracy hatched by the defendants, the second defendant had set fire to the textiles shop conducted by the plaintiffs by name 'Sivani Silks' and caused the plaintiffs loss of about fifty lakhs rupees. O.P.(C) No.1156/2020 3 4. Along with the suit, the plaintiffs filed an application as I.A.No.3602/2019 (Ext.P2) under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (for short 'the Code') for attachment before judgment of the immovable property owned by the first defendant. 5. The first defendant had filed caveat in the suit. Therefore, the trial court issued notice to him in Ext.P2 application. He filed objection to Ext.P2 application denying the averments in the plaint and vehemently opposing the prayer for attachment made by the plaintiffs. 6. As per Ext.P4 order dated 29.06.2020, the trial court dismissed Ext.P2 application. 7. The plaintiffs have filed this original petition under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P4 order. 8. Heard learned counsel for the petitioners and also the first respondent. 9. This Court had entertained a doubt as to whether an appeal would lie or not under Order XLIII Rule 1 of the Code O.P.(C) No.1156/2020 4 against the order impugned in this original petition. Under Order XLIII Rule 1(q), an appeal shall lie from an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII. This is a case in which no conditional order of attachment was passed by the trial court before it ultimately dismissed the application filed by the plaintiffs under Order XXXVIII Rule 5 of the Code. A Full Bench of this Court, in **Sadasivan v. Surendradas : 2020 (6) KLT 1** , has held that Order XXXVIII Rule 6(2) of the Code cannot apply to a case where there was no conditional attachment of the whole or any portion of property, or in other words, Order XXXVIII Rule 6(2) is not intended to cover cases in which defendant successfully showed cause against attachment before judgment, in which no conditional attachment order under Order XXXVIII Rule 5(3) of the Code has been granted. Therefore, no appeal lies against the impugned order under Order XLIII Rule 1(q) of the Code. Therefore, this original petition requires consideration on merits. 10. Order XXXVIII Rule 5(1) of the Code provides that, where, at any stage of a suit, the Court is satisfied, by affidavit O.P.(C) No.1156/2020 5 or otherwise, 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, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. 11. The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that the decree, if passed, would be satisfied. It is a sort of guarantee against the decree becoming infructuous for want of property. Action by attachment under Order XXXVIII Rule 5 of the Code is preventive and not punitive. 12. Before passing an order for attachment before judgment, the court should be satisfied that the plaintiff has got O.P.(C) No.1156/2020 6 ## a prima facie case. In **Raman Tech Process Engineering Company v. Solanki Traders : (2008) 2 SCC 302** , the Apex ## Court has held as follows: _"The scheme of Order 38 and the use of the words 'to obstruct or delay the execution of any decree that may be passed against him' in Rule 5 make it clear that before exercising the power under the said Rule, the Court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the Court should be satisfied the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the Court about the existence of a prima facie case, the Court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets,an_ O.P.(C) No.1156/2020 7 _attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case"._ ## (emphasis supplied) 13. In the instant case, the plaintiffs have got no plea that the first defendant had directly participated in the act of setting fire to the textiles shop conducted by them. The allegation in the plaint is that the first defendant, through the third and the fourth defendants, had given money to the second defendant for setting fire to the shop. The suit claim against the first defendant is wholly based on the chargesheet filed against the defendants by the police in the criminal case registered in the matter. The trial of the criminal case is yet to take place. In such circumstances, it cannot be found that there is a reasonable chance of a decree passed against the first defendant in the suit. 14. The trial court has rightly found that the plaintiffs suppressed the fact that the first defendant is conducting textiles business in the building in the property sought to be attached. True, there is an averment in the plaint that the first defendant is the owner of the textiles shop by name “Sathya Silks” being O.P.(C) No.1156/2020 8 conducted in the building opposite to the textiles shop of the plaintiffs. But, the averments in the plaint or in the affidavit filed in support of Ext.P2 application do not disclose that it is in the building in the property sought to be attached that the first defendant is conducting his business. 15. Suppression of the fact by the plaintiffs that the first defendant is conducting the competitive textiles business in the building in the property sought to be attached indicates their ulterior motive in seeking an order for attachment. The trial court has rightly held that the attempt of the plaintiffs in seeking attachment is to tarnish the reputation of the first defendant in the business and to harass him. 16. It is highly improbable that the first defendant intends to alienate the property sought to be attached after stopping the business being conducted in the building in that property. An order of attachment before judgment is drastic and ordinarily the Court would be slow in exercising the power in that regard for the simple reason that if the power is not exercised with utmost care and caution, it may ruin the reputation and business of the O.P.(C) No.1156/2020 9 party against whom the power is exercised. The Court must act with utmost circumspection before issuing an order of attachment so that the power vested in the Court is not abused by an unscrupulous litigant as a weapon of oppression against the opposite party. 17. In the objection filed by the first defendant to Ext.P2 application, he has given an undertaking that he shall not sell the property sought to be attached. Learned counsel for the petitioners has invited the attention of this Court to the decision in **Hameed T.Abdulla v. Koyenco Autos Private Limited : 2012 (3) KHC 692** in which it has been held that disposal of an interlocutory application for attachment before judgment on the basis of undertaking given by the defendant is not permissible. This decision has no application to the present case. The trial court has dismissed Ext.P2 application not on any undertaking given by the first defendant but on merits. 18. It is settled position of law that, in exercise of the power of superintendence under Article 227 of the Constitution, this Court cannot act as a court of appeal over the orders of the O.P.(C) No.1156/2020 10 Courts subordinate to it. The High Court can interfere, in exercise of its power of superintendence, when there has been a patent perversity in the orders of the courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In exercise of its power of superintendence, the Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the courts below is a possible view. When the subordinate courts have assumed jurisdiction which they do not have or have failed to exercise jurisdiction which they do have or when the jurisdiction though available, it is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, this Court may step in to exercise its supervisory jurisdiction under Article 227 of the Constitution. When the orders passed by the courts below are not perverse or when it is not shown that the courts below have neglected or failed to take into consideration the relevant factors, interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution is not warranted. O.P.(C) No.1156/2020 11 19. On consideration of the facts and circumstances of the case, the trial court has taken the view that the plaintiffs are not entitled to get an order for attachment before judgment of the property of the first defendant. The trial court has taken a reasonable view of the matter. The impugned order cannot be found to be grossly erroneous or perverse or palpably wrong. In such situation, I find no sufficient ground to interfere with the order passed by the court below. The original petition is liable to be dismissed. Consequently, the original petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(C) No.1156/2020 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PLAINT OS NO.253/2019 OF THE SUB COURT, IRINJALAKUDA** **EXHIBIT P2** **TRUE COPY OF THE APPLICATION IA NO.3602/2019 UNDER ORDER XXXVIII RULE 5 OF CIVIL PROCEDURE COSE** **EXHIBIT P3** **TRUE COPY OF THE OBJECTION DATED 21.12.2019 FILED BY THE RESPONDENT TO EXT.P.2 PETITION** **EXHIBIT P4** **TRUE COPY OF THE ORDER IN IA 3602/2019 IN OS NO 253/2019 OF THE SUB COURT IRINJALAKUDA DATED 29.06.2020** **RESPONDENT'S EXHIBITS : NIL** **TRUE COPY** **PS TO JUDGE**