IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2090 of 2009(W)
1. R.RAMANAN, S/O.RAJAN, AGED 48 YEARS,
... Petitioner
Vs
1. P.L.PRASANNA, D/O.LAKSHMIKUTTY,
... Respondent
For Petitioner :SRI.P.B.SURESH KUMAR
For Respondent :SRI.V.V.RAJA
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :23/06/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
-------------------------------
W.P.(C).NO.2090 OF 2009 (W)
-----------------------------------
Dated this the 23rd day of June, 2009
J U D G M E N T
The writ petition is filed under Article 227 of the
Constitution of India seeking the following reliefs:
i. to set aside Ext.P6 order dated 9.1.2009 in
I.A.No.4132/2008 in O.S.No.979/2008 on the
file of Princpal Sub Judge, Kollam.
ii. to allow Ext.P4 application, viz.
I.A.No.4132/2008 in O.S.No.979/2008 on the
file of Principal Sub Judge, Kollam as prayed
for.
iii. to issue such other further reliefs as this
Honourable Court deem fit and proper to
grant in the circumstances of the case.
2. Petitioner is the plaintiff in O.S.No.979/2008 on the
file of the Principal Sub Court, Kollam. Respondent is the
defendant in that suit. Suit was one for money based on an
agreement of sale. Along with the suit, the plaintiff moved an
WPC.2090/09 2
application for interim attachment before judgment of the
property covered by the agreement of sale, setting forth a case
that inorder to deprive the plaintiff the benefits of the decree
that is likely to be passed in his favour, the defendant intends
to remove or alienate that property and leave the jurisdiction
of this Court. Before instituting the suit, the plaintiff had
issued an advocate notice and, it is the case of the plaintiff,
that after acknowledging the notice, it was not responded
even with reply. The defendant entering appearance filed
counter to the application moved by the plaintiff under Order
XXXVIII Rule 5 of CPC impeaching the validity of the
agreement of sale contending that it is a forged and fabricated
document. The allegations raised to seek the relief of interim
attachment before judgment were also denied by the
defendant. The learned Sub Judge, after hearing both sides
formed a conclusion that the agreement is not a genuine one
after comparing the signature of the defendant in the
agreement with those appearing in his acknowledgment
accepting the suit notice issued by the plaintiff, vakalath and
also the objections filed to the application. Propriety and
WPC.2090/09 3
correctness of that order is impeached by the plaintiff filing
this writ petition invoking the supervisory jurisdiction of this
Court vested under Article 227 of the Constitution of India.
3. I heard the learned counsel on both sides. Having
regard to the submissions made and also perusing the
impugned order, I find the order cannot be sustained for the
reason that the learned Sub Judge has not applied his mind or
directed an enquiry that was required in examining an
application moved under Order XXXVIII Rule 5 CPC. The
essential conditions to be satisfied for granting the relief in an
application under Order XXXVIII Rule 5 of CPC are based on
the satisfaction 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,WPC.2090/09 4
In examining that question, the fair chances of getting a
decree based on the suit claim by the plaintiff also has to be
assessed. The merit of the case canvassed by the plaintiff and
the defense put forward by the defendant to resist that claim
are all matters to be considered in the trial after affording
reasonable opportunity to both sides to establish their
respective case. The enquiry in an application under
Order XXXVIII Rule 5 of CPC must confine within the
parameters covered by that rule, and at that stage, it is not
proper for the court to express any definite opinion on the
basic document produced on which the suit claim is based as
whether it is a genuine or a forged document. Ext.P6 order
would show that the learned Sub Judge has not adverted to
the conditions necessary for satisfaction of the application
under Order XXXVIII Rule 5 of CPC nor even directed any
enquiry to examine the merit of the application to find out
whether the petitioner/plaintiff has made out a case for that
relief. Some of the observations made in the order to the
effect that the agreement of sale is not genuine, that too,
based on the comparison of the signature of the defendant
WPC.2090/09 5
with those made subsequent to the alleged execution of that
agreement, to say the least, are exceptionable and should have
been avoided. Setting aside Ext.P6 order, I direct the learned
Sub Judge to examine the application in the light of the
observations made above and in accordance with law and pass
orders afresh within a period of one month from the date of
receipt of a copy of this judgment. Send a copy of this
judgment to the court below forthwith and issue copy to the
counsel on both sides on usual terms.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
——————————————————–
CRL.R.P.NO. OF 2006 ()
———————————————————
O R D E R
———————————————————
23rd March, 2009