PARSED MASTER Vs. ANTONY

JUDGEMENT

(1.) Plaintiff in OS 3 of 1986 on the file of the Subordinate Judge, Trichur is the appellant. The appellant filed a suit against the first defendant respondent for realisation of Rs. 3,23,680 with future interest at 12 per cent per annum The plaintiff was the General Secretary of the Trichur Jilla Mahallu Jumayath Association. He entered into a karar on 24th December, 1982, with the 1st defendant for the purchase of a printing press for a consideration of Rs. 2,90,000/-. On the date of the karar the plaintiff paid Rs. 40,000/- and thereafter on various dates he paid amounts and these payments, except the amount paid on 1-3-1984, have been endorsed in the karar. For the payment of Rs. 22,000/- on 1-3-1984 the plaintiff obtained separate receipt. Thus the first defendant paid Rs. 2,57,500/- and he waited for the execution of the document. The 1st defendant did not make any arrangement for the execution of the sale deed and postponed the same under some pretext or other. The plaintiff caused to send a lawyer notice on 21-4-1984 demanding specific performance. The 1st defendant informed the plaintiff the he had other debts to be paid to the State Bank of India and he wanted to sell the printing press to some others to discharge those debts. The 1st defendant also agreed to repay the amount due to the plaintiff. The 2nd karar was entered into between the parties and in pursuance of that karar the first defendant offered to pay Rs. 30,000/- towards damages. Thereafter, the 2nd defendant, the wife of the first defendant, issued a cheque to the plaintiff for Rs. 30,000/-. The cheque; when presented to the Bank bounced and the plaintiff could not realise any amount. The plaintiff also alleged in the suit that the first defendant requested the plaintiff to go to the former's place of business on 11-12-1985 with the original 2nd karar and the plaintiff accordingly went to the shop of the first defendant and the first defendant by some clandestine method obtained the original karar from the plaintiff. The first defendant did not return the original karar and the plaintiff was constrained to file a police complaint on 14-12-1985. With these allegations the plaintiff filed a suit for realisation of the amount due to him.

(2.) The 1st defendant admitted his transaction with the plaintiff. However, he disputed some payments made by the plaintiff. The 1st defendant also contended that he had discharged the major portion of the amount due to the plaintiff. The first defendant contended that the payment made by him to the plaintiff had been endorsed in the original of the 2nd karar.

(3.) The learned counsel for the first defendant as a preliminary objection questioned the maintainability of this appeal. It was contended that the impugned order was passed under O.38 R.5 CPC and therefore the same is not appealable under O.45 Rule l(q). The orders made under O.38 R.2, 3 and 6 alone are made appealable. In the instant case the plaintiff filed the application for interim attachment and the notice was ordered, and in pursuance of the notice advocate appeared and filed objection. No interim or conditional attachment was granted on presentation of the petition. After hearing both sides the court below passed the impugned order disallowing the prayer for attachment.