PALAKKUZHIYAN MOITHEEN Vs. JAMES PULLANTHANIKKAL

JUDGEMENT

(1.) The plaintiff/petitioner came up in appeal against the lifting of an order of attachment on the ground of non-discloure of source of information regarding the intention of the defendant to alienate the property.

(2.) The subject matter of the suit comes to Rs.1,25,01,103.00. It is submitted that the dismissal of the application virtually left out the plaintiff without any other alternative to execute the decree that may be passed. In fact, what is incorporated under Order XXXVIII C.P.C. is a precautionary measure and shall not be used to defeat or pressurise the defendant or their rights over any movable or immovable property. But, at the same time, the court has to protect the interests of plaintiff and shall not permit the defendant either to dispose of his property or to remove from the jurisdiction of that court so as to defeat or delay the decree that may be passed. In the instant case, the order of attachment before judgment was lifted on the sole ground that the source of information regarding the attempt of the defendant to dispose of his property was not disclosed in the affidavit attached to the application. Hence, the question came up for consideration is whether the trial court is justified in lifting the attachment before judgment on that sole ground.

(3.) Initially, guidelines were issued under Order XXXVIII Rule 5 C.P.C. by the High Court of Calcutta in Skoda Auto India Pvt. Ltd., Maharashtra v. M/s. St.Antony's Trading Company and Others (2018 (1) KHC 574) Premraj Mundra v. Md.Maneck Gazi & Ors. (AIR 1951 Cal. 156). The Apex Court had given acceptance to the said guidelines in Raman Tech & Process Engg. Co. and Another v. Solanki Traders [(2008) 2 SCC 302]. The guidelines issued by the High Court of Calcutta in Premraj Mundra's case (supra) are extracted below for reference: