E.K. KUNHAMMEDKUTTY Vs. ARIYILAKATH KUNHIKANDY MEHROOF

JUDGEMENT

(1.) THE sole defendant in O. S. No. 381/2010 on the file of the Court of the Subordinate Judge of Kozhikode has filed this appeal challenging an order of attachment passed under Rule 5 of Order XXXVIII of the Code of Civil Procedure. The respondent is the plaintiff in the suit. The respondent herein instituted the suit, O.S. No. 381/2010 on 27.5.2010 for realisation of the sum of '. 1,78,81,802/ - stated to be due from the appellant under three heads. Along with the plaint, he filed I.A. No. 1815/2010 under Rule 5 of Order XXXVIII of the Code of Civil Procedure, praying for attachment of eight items of immovable properties belonging to the appellant, situated in Kacheri Village/Kasaba Village/Panniyankara Village of Kozhikode Taluk, Kozhikode District. A conditional order of attachment was passed on 28.5.2010 and thereupon another order was issued on the same day attaching the aforesaid properties, for the reason that the defendant/appellant has failed to furnish security for '.2 Crores.

(2.) UPON receipt of summons, the appellant entered appearance and filed a counter affidavit to the application under Rule 5 Order XXXVIII of the Code of Civil Procedure. Apart from raising various contentions, he contended that the order of attachment which was passed on 28.5.2010 is in violation of the provisions contained in Rule 5 of Order XXXVIII of the Code of Civil Procedure and is, therefore, null and void. He also contended that he has no intention to sell the properties which are sought to be attached. The court below considered the rival contentions and passed the impugned order dated 04.01.2012 (wrongly shown as 04.01.2010) whereby the conditional order of attachment which was passed on 28.5.2010 was made absolute. Hence this Appeal.

(3.) SHRI K. M. Firoz, learned counsel appearing on behalf of the respondent would, on the other hand, contend that the appellant who was the power of attorney holder of the plaintiff, is bound to account for the rental income received by him from the buildings jointly owned by him and others, that the order of attachment passed on 28.5.2010 does not suffer from any infirmity whatsoever, and that having regard to the nature of the relief sought for in the plaint, unless an order of attachment is issued, the plaintiff will be rendered remediless, if the immovable properties attached by the impugned order are disposed of.