AMEERUDHEEN Vs. RAMSEENA

JUDGEMENT

(1.) The petitioner herein is the respondent in OP No. 543 of 2015 on the file of Family Court, Ottapalam. The respondent herein is the petitioner before that Court. The case was instituted seeking recovery of gold ornaments illustrated under schedule 1 or its market value and a sum of Rs.1,80,000/- alleged to have entrusted with the petitioner herein and also for return of the articles mentioned in schedule 2 or its value thereof, along with interest and cost. The claims in the original petition is valued at Rs.12,87,000/-. The petitioner is contesting the original petition before the Family Court by filing written statement. Along with OP No. 543 of 2013 the respondent had also filed an interim application before the Family Court seeking attachment before judgment of five items of properties. Ext. P3 is the copy of IA No. 278 of 2012 filed in this respect. The relief sought for in the interim application is to attach item No. 1 scheduled therein in full and for attachment of 7/48th share of the petitioner herein with respect to item No. 2 to 5 in the schedule. It is evident that the Family Court had issued notice directing the petitioner to furnish security to the tune of Rs.9 Lakhs or to show cause against the attachment proposed. Ext. P4 is the notice issued in this regard. Thereafter the Family Court passed an order of attachment, presumably because the petitioner had failed to furnish security or to show cause against the attachment proposed. Subsequently, a partition deed was executed between the petitioner herein and other co - sharers of the property scheduled as item No. 2 to 5 in the order of attachment. Ext. P5 is the copy of the partition deed executed and registered as Document No. 1024/2013 of SRO, Agali. By virtue of the partition deed, the 7/48th share held by the petitioner was partitioned and set apart as B schedule, whereas share of other co - owners was included in A schedule of the Deed. After execution of the partition deed the petitioner herein filed IA No. 1331 of 2013 as per Ext. P6 seeking to lift the attachment with respect to the properties included in A schedule of the partition deed and to limit the attachment only with respect to B schedule of the said deed. The respondent herein filed objection against the said interim application. The Court below had disposed of the same through Ext. P7 order. The Family Court observed that, the partition deed was executed only on 30/07/2013, after 11/2 years of the order of attachment. It is noticed that the value shown in the partition deed with respect to B schedule is only Rs.1,07,000/-. The Court observed that, even if any claim has to be filed, it should have been filed by the other parties of the partition deed. Finding that the partition deed is executed only to get rid of the order of attachment and only to harass the respondent herein, the Court below declined to lift the attachment. It is also pointed out that the claim made by the respondent is to the extent of Rs.12,87,000/- whereas the entire value of the property as per the partition deed is only Rs.6,50,000/-. Therefore, finding that there is no merit in the claim made by the petitioner, the IA was dismissed. It is aggrieved by the said order (Ext. P7) this original petition is filed by invoking the supervisory jurisdiction vested on this Court under S.227 of the Constitution of India.

(2.) Heard; both sides. This Court is of the considered opinion that IA No. 55/2013 was totally misconceived while considering the procedure under R.5 of Order XXXVIII of the Code of Civil Procedure. The Court can direct the defendant in a suit either to furnish security with respect to any sum which may be specified or to produce and place the property at the disposal of the Court, in an application seeking attachment before judgment. The Court can also order conditional attachment of the whole or any portion of the property so specified, under sub-rule (3) of R.5. When the defendant fails to show cause or to furnish security as demanded, the Court can order attachment of the property as specified under R.6 of Order XXXVIII. In the case at hand, it is evident from Ext. P4 notice that the Family Court had issued an order under R.5 directing to furnish security to the tune of Rs.9 lakhs or to show cause as to why the attachment shall not be ordered. Presumably the Court had passed an order of attachment after issuance of Ext. P4 because the petitioner herein had failed to furnish security or to show proper cause against the proposed attachment. When an order under R.6 is passed by the Court below, the defendant in a suit can approach the Court for removal of the attachment only under R.9 of Order XXXVIII by furnishing security for the amount claimed. Evidently, the interim application, IA No. 55/2013, was filed not under R.9 seeking withdrawal of the attachment by offering to furnish security. On the other hand, the petitioner had raised a claim for lifting of the attachment with respect to A schedule property mentioned in the partition deed, on the basis that the property stands vested in the share of others. Such a claim petition, even if sustainable, can only be filed by the co - sharers who are claiming interest over the property attached, which could have been sought under R.8 of Order XXXVIII of the Code of Civil Procedure. In the case at hand, with respect to items 2 to 5 contained in the schedule of the attachment application, it was specified that the petitioner is holding only 7/48th share. Therefore it is evident that what is attached by the Court is only the 7/48th share held by the petitioner in the properties described under items 2 to 5. But when the said order of attachment is in force, the owners of the property were not expected to effect any partition to the extent of defining the specific shares. In that respect, finding of the Court below that the partition effected during existence of the order of attachment can be presumed as one intended to defeat the interest of the respondent, seems to be valid and sustainable. At any rate, the petitioner cannot seek release of the attachment with respect to the A schedule property, because going by his own contention the petitioner is not the owner of the said property by virtue of the partition deed. Hence the claim for release of A schedule property raised by the petitioner is totally unsustainable.

(3.) Under the above mentioned circumstances, we do not find any error of jurisdiction committed by the Court below in dismissing IA No. 55/2013. There is no circumstances existing for interference of this Court with the impugned order, that too in a petition filed by invoking the supervisory jurisdiction vested on this Court under Art.227 of the Constitution of India. Consequently the original petition deserves no merit and the same is hereby dismissed.