SANEESHA Vs. VILLAGE OFFICER

JUDGEMENT

(1.) Petitioner approached this Court challenging Ext.P2 order of attachment passed by the Arbitrator, essentially on the premise that, the petitioner is not a party to the arbitration, wherefore, his property cannot be attached by virtue of an order like Ext.P2. Petitioner seeks to quash Ext.P2 and also a further direction to the Sub-Registrar and the Village Officer, to remove the entries with respect to the above referred attachment, vide Ext.P2 order.

(2.) Heard the learned counsel for the petitioner, learned counsel for the 3rd respondent and learned Government Pleader on behalf of the respondents 1 and 2. Though, notice was issued to respondents 4 and 5, they have chosen not to enter appearance.

(3.) Learned counsel for the petitioner submits that, inasmuch as the petitioner is not a party to the arbitral proceedings, his property is not liable to be attached. Secondly, it was pointed out that, the provisions of Order XXXVIII Rule 5 of the Code of Civil Procedure, cannot be imported to the instant facts, since the subject property was not 'owned' by the respondent in the arbitral proceedings, as on the date of attachment. Instead, the petitioner was the owner of the property as on that date, wherefore, the requirements of Order XXXVIII Rule 5, is not satisfied. Learned counsel would submit that, consent, either express or implied, is pivotal to confer jurisdiction to the Arbitrator, which is conspicuously absent in the instant case. A decision of the Hon'ble Supreme Court in State Bank of India v. Ericsson India Private limited and Others [2018 (16) SCC 617], is relied upon by the learned counsel for petitioner as one rendered on identical facts.