SIVAN NAIR AND KAVITHA Vs. KRISHNANKUTTY

JUDGEMENT

(1.) Ext. P11 order passed by the Court of the Munsiff of Wadakanchery on 18.10.2013 on I.A. No. 4159 of 2013 in O.S. No. 862 of 2013 and Ext. P12 order passed by the Court of the Munsiff of Wadakanchery on 18.10.2013 on I.A. No. 3987 of 2013 in O.S. No. 862 of 2013 are under challenge in this original petition filed by the defendants in the suit. The suit instituted by the respondent/plaintiff is one for realization of the sum of Rs. 4,16,539/- with interest and costs from the defendants and their assets. It was alleged that pursuant to an agreement dated 21.4.2012, the plaintiff had commenced the construction of a residential building and that as on 11.6.2013, he had expended a total sum of Rs. 14,66,539/- in the construction, that the defendants have paid only the sum of Rs. 10,50,000/- and that the sum of Rs. 4,16,539/- is due from them.

(2.) Along with the plaint, the respondent/plaintiff filed I.A. No. 3987 of 2013 under order XXXVIII rule 5 of the Code of Civil Procedure for attachment of the plaint 'A' schedule property, which admittedly belongs to the first defendant. In the affidavit filed in support of the said application, a copy of which is on record as Ext. P8, the plaintiff had averred that he has come to know through Arun, S/o. Haridas, Thachapilly House, Elanad Village, Desam, Thalapilly Taluk that in order to escape, obstruct and delay the decree that may be passed against them in the suit and evade payment, the first respondent has made all arrangements to transfer the petition schedule property to his close relatives. Upon receipt of notice, the defendants entered appearance and filed Ext. P9 objections wherein inter alia they disputed the authenticity and genuineness of the agreement dated 21.4.2012 produced along with the plaint. They also contended that the agreement entered into between the plaintiff and the second defendant is one dated 14.5.2012 and produced along with the objections, the original of the said agreement. The plaintiff thereupon filed I.A. No. 4159 of 2013 for an order directing the said document to be kept in safe custody. In the affidavit filed in support of the said application, he contended that the said document has been fabricated after falsifying his signature and he apprehends that in order to prevent him from taking appropriate legal action, the defendants are likely to apply for taking back the said document. The court below considered I.A. No. 4159 of 2013 and passed Ext. P11 order dated 18.10.2013 whereby it directed the original of the agreement dated 14.5.2012 produced by the defendants to be kept in safe custody until further orders. The court below also posted the application for counter and hearing on 5.11.2013. On the same day, the court below passed Ext. P12 order on I.A. No. 3987 of 2013 whereby the first defendant was ordered to furnish security for the sum of Rs. 4,20,000/- or to show cause why security should not be furnished on or before 5.11.2013. The court below also directed that in the meanwhile the plaint schedule property shall be brought under the conditional attachment and directed the application to be posted for hearing on 5.11.2013. The aforesaid orders are under challenge in this original petition. I heard Dr. George Abraham, learned counsel appearing for the petitioners. I have also gone through the pleadings and the materials on record. Ext. P11 order discloses that it is only an interim order and that final order on I.A. No. 4159 of 2013 will be passed after the defendants file their objections and the application is heard again on 5.11.2013 to which date it stands posted. It is evident from a reading of Ext. P11 order, that it is only an interim arrangement made by the court pending disposal of the application wherein the plaintiff had sought an order directing that the document produced by the defendants be kept in safe custody. Such being the situation, as the court below is yet to pass final orders on the application, I find no merit to challenge Ext. P11. The petitioners can be said to be aggrieved only if, after they file their objections and after considering their contentions, the court below passes an order adverse to them. As regards Ext. P12 also, I am of the considered opinion that no interference is called for. All that the trial court has directed by the impugned order is to call upon the first defendant to furnish security for the sum of Rs. 4,20,000/- or to show cause before 5.11.2013 as to why the security should not be furnished. The court below has also ordered conditional attachment of the plaint schedule property. It is evident from a reading of Ext. P12, that it is an order passed under order XXXVIII rule 5 of the Code of Civil Procedure. Rule 6 of order XXXVIII of the Code of Civil Procedure stipulates that where the defendants fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the court, the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. Sub rule (2) of rule 6 of order XXXVIII of the Code of Civil Procedure stipulates that where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the court shall order the attachment to be withdrawn, or make such other order as it think fit. An order of attachment thus passed, can be challenged in appeal as provided under order XLIII rule 1(q) of the Code of Civil Procedure. On the terms of Ext. P12 order, I am of the considered opinion that the petitioners should either furnish security for the sum of Rs. 4,20,000/- or show cause as to why the security should not be furnished and seek an order on the merits, instead of moving this Court under Article 227 of the Constitution of India.