RAJAN Vs. JAYSHREE NAYAR

JUDGEMENT

(1.) The question of law involved in this appeal is the following:

(2.) Rajan, the appellant, instituted the suit, O.S.No.78 of 2006 on the file of the Court of the Subordinate Judge of Mavelikkara, against the second respondent Leela, for realisation of a sum of Rs. 8,69,000/- on the basis of the promissory note allegedly executed by Leela in favour of Rajan for Rs. 6,60,000/-. The suit was filed on 4.4.2006. I.A.No.522 of 2006 was filed by the plaintiff under Order 38 Rule 5 of the Code of Civil Procedure for attachment before judgment of an extent of 8.083 cents of land situated in Elamkulam Village in Ernakulam. The court below passed an order of attachment dated 12.4.2006. The attachment was effected on 17.4.2006. The first respondent, Dr.Jayasree Nayar, filed I.A.No.2044 of 2006 for lifting the order of attachment before judgment made in I.A.No.522 of 2006. The application was filed under Order 21 Rule 58 of the Code of Civil Procedure. The court below, by the order dated 24.6.2008, allowed the application and the attachment was lifted, which is under challenge in this appeal filed by the plaintiff.

(3.) Dr.Jayasree Nayar, the claimant, contended that the property under attachment had been sold by the defendant to one Dileep on 12.1.2006. Dileep sold the property to the claimant on 6.10.2006. The claimant Stated that she is a bona fide purchaser for value. The property was purchased by Dileep before the institution of the suit. The claimant purchased the property after making due enquiries and believing that the property is free from mortgage, charge or attachment. The application for attachment before judgment was filed making a false Statement that the property belonged to the defendant Leela at the time of making the application. She had no right in the property at the time of instituting the suit or at the time of passing the order of attachment.