IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18569 of 2009(O)
1. JOSE PHILIP,
... Petitioner
Vs
1. D.ASOK KUMAR, S/O.DAMODARAN PILLAI,
... Respondent
For Petitioner :SRI.S.M.PREM
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/07/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No. 18569 OF 2009 O
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Dated this the 3rd day of July, 2009
J U D G M E N T
The writ petition is filed seeking the following relief:
” set aside Exts.P3 and P7 orders of the
Sub Court, Neyyattinkara.”
2. Petitioner is the first defendant in O.S.No.83/08 on the
file of the Sub Court, Neyyattinkara. Respondent is the plaintiff.
Suit is one for a declaration that the action taken by the petitioner,
who is a Sub Inspector of Police, under the provisions of the Mines
and Minerals (Development and Regulation) Act, 1957, is illegal
and void, and also for awarding of damages to the tune of
Rs.1,36,000/- and other consequential reliefs. With the suit the
respondent/plaintiff moved an application for interim attachment of
the undivided share of the petitioner in his family property moving
an application under Order 38 Rule 5 CPC. The learned Sub
Judge passed an interim order of attachment directing him to
furnish security or show cause why he should not furnish security.
In response to the notice, the petitioner appeared and filed
objections and sought for lifting the attachment. In his objections
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among other contentions he also challenged the maintainability of
the suit for want of proper notice under the Kerala Police Act and
also under the provisions of the Mines and Minerals (Development
and Regulation) Act impeaching the suit claim as barred under the
provisions of that Act. The learned Sub Judge, after hearing both
sides, declined to lift the attachment and overruled the objections.
Ext.P7 is the copy of that order. Impeaching the propriety and
correctness of Ext.P7 order, the petitioner has filed this writ
petition invoking the supervisory jurisdiction vested with this court
under Article 227 of the Constitution of India.
3. Having regard to the facts and circumstances
presented with reference to Ext.P7 order impugned, I find that no
notice to the respondent is necessary and hence it is dispensed
with. The learned counsel for the petitioner submitted that along
with the objections, he has filed a written statement impeaching
the maintainability of the suit and also the protection given to him
as a public servant as insulated under the provisions of the Kerala
Police Act and also the Mines and Minerals (Development and
Regulation) Act. Without adverting to the objections so raised by
him, Ext.P7 order was passed declining to lift the attachment for
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an act which is stated to have been done by him in discharge of
his official duties, is the grievance espoused by the learned
counsel for the petitioner. Perusing Ext.P7 order, I find that the
learned Sub Judge refused to lift the attachment for the sole
reason that the petitioner has not furnished security as ordered.
There is no advertence nor even any reference as to whether any
of the ingredients to be satisfied for passing an order under Order
38 Rule 5 CPC has been made out in the case to make the
attachment absolute. Needless to point out an interim order of
attachment before judgment can be passed by a court only if it is
satisfied from the materials placed that the defendant in order to
defeat the decree that is likely to be passed in favour of the
plaintiff in the suit is about to dispose the whole or any part of his
property from the local limits of the jurisdiction of the court. There
is not even a whisper in Ext.P6 order that the petitioner who is a
public officer still continuing service as a Sub Inspector of Police is
culpable of having done any act contemplated under Order 38
Rule 5 CPC with intend to obstruct and delay the execution of a
decree in case the suit claim is upheld after adjudication. Ext.P7
order on the face of itself is unsustainable and liable to be set
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aside. I do so. I direct the learned Sub Judge to consider the
objections raised by the petitioner in the application for attachment
afresh and also to examine the challenge raised by him in his
written statement as to the maintainability of the suit.
Maintainability of the suit has to be considered as a preliminary
issue and appropriate orders thereof has to be passed without
delay. Similarly, the application for attachment in respect of which
objections have already been raised by the petitioner should be
heard and disposed before settling of the issues as it is submitted
by the learned counsel for the petitioner that, the other defendants
have not filed their written statements so far.
The court below is directed to pass appropriate orders on the
application for attachment, after hearing both sides, within a span
of three weeks from the date of receipt of a copy of this judgment.
Writ petition is disposed as above.
Handover a copy of this judgment to the counsel for the
petitioner on usual terms.
Sd/-
(S.S. SATHEESACHANDRAN, JUDGE)
aks