K GOVINDANKUTTY MENON Vs. REENA

JUDGEMENT

(1.) In this Writ Petition under Article 227 of the Constitution, the petitioner, a retired member of the State Higher Judicial Service impugns Ext.P3 order passed by the learned Subordinate Judge on an application for attachment before judgment filed by respondents 1 to 3 who were plaintiff in a suit for damages suffered by them due to the death of one Thomas, husband of the 1st respondent and father of respondents 2 and 3, by electrocution. The allegation in the plaint was that live electric wire had been laid by respondents 4 to 7 who were defendants 3 to 6 in the suit on the boundary of he property belonging to the petitioner who was the 1st defendant in the suit, so as to protect the cultivations standing thereon from attack of rats, bandicoots, rabbits, wild boars etc. The ridge over which the live electric wire was laid was being used by various persons of locality to the knowledge of all the defendants and it is contended that the instruction given by the writ petitioner-1st defendant to the 2nd defendant, allegedly his agent to lay live electric wire was an intentional negligent act; and the petitioner vicariously and the other defendants directly are liable for payment of damages. The contention raised by the petitioner in the suit inter alia was that it was not he who was cultivating the property and that the property in question had been leased out by him to the 2nd defendant who only was cultivating the same, engaging the other defendants, all of them agricultural workers. Accordingly it was contended that the petitioner is not at all liable for damages or any other claim made in the suit, and that the suit as instituted against him is not maintainable. Initially the suit was filed in forma pauperism and while the indigent O.P was pending, I.A.No. 2810 of 2003 seeking attachment of several items of properties including that of the petitioner was filed. The allegation in that I.A was that the petitioner is going to execute a transfer deed in respect of the residential properties which are shown as item 1 in the schedule in favour of his son. To the I.A, the petitioner filed a counter affidavit categorically stating that he has no intention at all to execute any deed in favour of his son or anybody else. Attachment was not granted and the indigent O.P. itself was dismissed on 18.4.2004. It is thereafter that court fee was remitted and the present suit was registered. In the present suit, I.A.No. 95 of 2005 seeking attachment under Order XXXVIII Rule 5 C.P.C of the very same properties was filed. Here again, the allegation in the affidavit in support of the application so far as the same related to the petitioner's property was that he is attempting to create documents in favour of his son and wife. Ext.P1 is copy of the application for attachment and the affidavit in support thereof. To Ext.P1, the petitioner filed Ext.P2 counter affidavit wherein it is clearly averred that there is no proposal whatsoever to alienate the property as alleged in Ext.P1. It is stated in the counter affidavit that if the petitioner had any such intention he could have effected the transfer as soon as the Pauper O.P was dismissed. The petitioner has undertaken through the counter affidavit that he shall not alienate the properties in question and it is declared therein that he has no intention at all to defeat any prospective decree which may be passed against him.

(2.) Despite the contentions in Ext.P2, the learned Subordinate Judge has taken the view that the merits of the suit claim need not be gone into at this stage. Holding that a prima facie case for attachment of property has been made out, the court has passed an order directing the petitioner and each of the other defendants in the suit to furnish security for Rs.4,25,000/- on or before 5.4.2005, failing which all properties shall be attached. Ext.P3 is copy of the said order. It is to quash Ext.P3 that the present Writ Petition has been filed raising various grounds.

(3.) I have heard the submissions of Sri.K.P.Sreekumar, learned counsel for the petitioner, Sri.Binoy Ram V, learned counsel for respondents 1 to 3, Sri Rajesh Vijayan, learned counsel for respondents 4 and 7 and Sri.V.Bunniraj, learned counsel for respondents 5 and 6.