The main legal point established in the judgment is that under O.38 R.5(1) of the Code of Civil Procedure, the court may allow attachment before Judgment if satisfied that the defendant is transferring the property with intent to obstruct or delay the execution of the decree. The court's decision was influenced by the petitioner's proof of the defendants' intent to dispose of the properties to delay the execution of the decree.

1. Plaintiff in O.S. No. 216/97 on the file of the Munsiff's Court, Muvattupuzha is the petitioner. This Civil Revision Petition is filed against the order in I.A. No. 842/97 which was filed for attachment of immovable properties belonging to the defendants, before Judgment. Plaintiff filed the suit for recovery of a sum of Rs. 1,00,000 with 18 per cent interest till realisation from the defendants and their assets. According to the plaintiff, he entered into an agreement with the respondents for the purchase of 1 acre and 26 cents in Survey No. 607/IA, 37 cents in Survey No. 607/1B and 37 cents in Survey No. 607/1B/2 of Mulavoor Village. The agreement was executed on 23rd August 1996. The price was fixed at 4,600 per cent. The sale deed was agreed to be executed on or before 28th February 1,997. An amount of Rs. 1,00,000 was given to the defendants as advance. Since the defendants were not interested in performing their part of the agreement and no steps were taken by them to prove their title, petitioner/plaintiff repudiated the contract and demanded return of the advance amount of Rs. 1,00,000.

2. Along with the suit, petitioner filed I .A. No. 842/97 for attachment of the property agreed to be sold, viz., 2 acres in Survey Nos. 607/1 A, 607/IB and 607/1B2. In the affidavit accompanying the petition for attachment, petitioner' averred that the respondents/defendants were trying to alienate the properties so as to delay and defeat the decree that may be passed. According to the petitioners, the respondents were negotiating with one John Chakravalil for the sale of the said properties. Respondents had filed a caveat. In the counter affidavit filed by the respondents, they did not deny that they are contemplating the sale of the properties mentioned in the affidavit filed along with the petition for attachment. It was contended that they have got 5.18 acres of land in Survey No. 61/1A and 2A in Karimani Kara, Mananthawadi and therefore the sale of the properties sought to be attached does not warrant inference that they intend to delay or obstruct the execution of any decree. It was also stated on merits that there was no default on their part and they are prepared to sell the properties even now. After hearing the parties, by the impugned order, the learned Munsiff dismissed the petition. It is against that the present revision petition is filed.

3. The learned Munsiff was of the view that the attachment before Judgment could be issued only exceptionally and in very compelling circumstances. According to the court below, the allegations made in the affidavit were not sufficient to justify attachment before Judgment Defendants are having a larger extent of properties other than the properties scheduled in the plaint. Hence, the court below took the view that no case was made for attachment before Judgment. The Court below had taken into consideration the Judgment of a Division Bench of this court in Pareed Master v. Antony 1987 (2) KLT 649.

4. Learned counsel for the petitioner Shri P. B. Krishnan submitted that even though the court below had considered the decision in Pareed Master v. Antony 1987 (2) KLT 649, it has failed to follow the decision. The learned counsel submitted that a distinction has been made in that decision before attachment of movable and immovable properties. Further, he submitted that in this case the respondents had filed a caveat in order to prevent any attachment order being passed ex parte and also filed a counter affidavit wherein they have not denied the averment in the affidavit that the properties were going to be sold. On the other hand, what is stated in paragraph L2 of the counter affidavit is that the defendants are at liberty to deal with the properties as they like. Learned counsel for the respondents Shri. Balakrishnan argued that the attachment before Judgment is a serious one and unless the affidavit discloses good reasons for attachment, the order will not be passed. Hence, according