Gee Varghese vs V.R. Joy

Thomas P. Joseph, J.—This Writ Petition is preferred by the defendant in O.S. No. 352 of 2001 of the court of learned Sub Judge, Mavelikkara. Petitioner is aggrieved by Ext.P4, common order to the extent it relates to dismissal of I.A. No. 1574 of 2009 (wrongly mentioned in the impugned order as I.A. No. 1571 of 2009) requesting learned Sub Judge to lift the attachment over immovable property belonging to the petitioner and his wife. Respondent has obtained a decree for recovery of money against petitioner. Claiming that petitioner was abroad during the relevant time he filed I.A.Nos.1571 of 2009 and 1572 of 2009 to set aside the exparte decree and to condone the delay in filing that application. Along with the said applications he also filed I.A. No. 1574 of 2009 to lift the attachment over immovable properties belonging to himself and his wife offering to furnish security for the amount due under the decree. Learned Sub Judge dismissed all the applications vide Ext.P4, common order. Dismissal of I.A. No. 1571 of 2009 and 1572 of 2009 are under challenge in this Court in F.A.O. No. 248 of 2010. Dismissal of I.A. No. 1574 of 2009 (application to lift attachment over immovable properties) is under challenge in this Writ Petition.

Though notice of this Writ Petition was served on respondent he remains absent. I have heard learned Counsel for petitioner.

Learned Counsel states that no valid reason has been stated by the learned Sub Judge to reject the prayer in I.A. No. 1574 of 2009. Learned Counsel also states that to show bona fides of petitioner he has, along with I.A. No. 1574 of 2009 produced receipt for fixed deposit of Rs. 2,25,000/- maturing on 09.09.2014 (maturity amount being Rs. 3,30,265/-). But learned Sub Judge was not inclined to allow the request for lifting attachment. Learned Counsel states that on account of attachment continuing on the immovable property petitioner is put to difficulties that himself and wife are not able to dispose of the property.

Rule 9 of Order XXXVIII of the CPC (for short. "the Code") states that where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes security required, together with security for the costs of the attachment, or when the suit is dismissed. Here, the suit ended in exparte decree. But, when the petitioner/defendant furnishes sufficient security and requests to lift attachment the court was bound to consider the request. It is seen from Ext.P4, common order that I.A. No. 1574 of 2009 was dismissed for the reason that respondent/plaintiff has not so far filed executing petition and since the property of petitioner/defendant has been attached in the suit attachment is not liable to be withdrawn and accordingly I.A. No. 1574 of 2009 is dismissed. Learned Sub Judge is not correct in taking that view on the face of Order XXXVIII Rule 9 of the Code There is no reason why the request of petitioner to lift attachment shall not be accepted provided, he furnishes sufficient security for the amount due under the decree.

Resultantly, this Writ Petition is allowed in the following lines:

i. Ext.P4, common order to the extent it concerned dismissal of I.A. No. 1574 of 2009 in O.S. No. 352 of 2001 of the court of learned Sub Judge, Mavelikkara is set aside.

ii. I.A. No. 1574 of 2001 is allowed and the attachment over immovable property of petitioner and his wife effected in the suit is lifted subject to the following conditions:

(a) Petitioner shall produce bank guarantee for the sum of Rs. 3,50,000/- (Rupees three lakhs and fifty thousand only) in the court below.

(b) Petitioner shall also furnish security in the form of landed property to the satisfaction of the learned Sub Judge for another sum of Rs. 2,00,000/- (Rupees Two lakhs only).

(c) On learned Sub Judge being satisfied of sufficiency of the security as above stated, attachment will stand lifted and thereon learned Sub Judge shall communicate the matter to the office of Sub Registrar concerned.