IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28110 of 2007(U)
1. SAHADEVAN E.N., AGED 44 YEARS,
... Petitioner
Vs
1. P.L.ANTONY, S/O. LONAPPAN,
... Respondent
2. SUJATHA T.K., AGED 32 YEARS,
For Petitioner :SRI.M.S.UNNIKRISHNAN
For Respondent :SRI.ABRAHAM P.GEORGE
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :08/07/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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W.P(C). NO. 28110 OF 2007
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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/-
