Point of Law: Plaintiff/petitioner can apply to court to attach an immovable property before judgment under Order XXXVIII, Rule 5 of Code.

JUDGMENT :

[P.G. Ajithkumar, J.]

1. Ext.P7 is an order dated 11.08.2022 of the Family Court, Kollam dismissing I.A.No.6 of 2022 in O.P.No.661 of 2016. The petitioners have filed I.A.No.6 of 2022 under Order XXXVIII, Rule 9 of the Code of Civil Procedure, 1908, seeking to withdraw attachment in respect of 86 sq.m. of property comprised in Resurvey No.158/6 of Adichanalloor Village, where a shop room is situated. The Family Court after hearing both sides, dismissed that interlocutory application. The petitioners have filed this Original Petition under Article 227 of the Constitution of India seeking to set aside Ext.P7 order.

2. On 27.10.2022, notice was directed to be served on the respondent through her counsel appearing before the Family Court, Kollam, where O.P.No.661 of 2016 is pending consideration. The respondent on receipt of the notice entered appearance through her learned counsel. Although the parties were referred to mediation, the matter could not be settled.

3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent.

4. The respondent filed O.P.No.661 of 2016 seeking recovery of gold ornaments and realisation of money from the petitioners. The total claim in money terms is Rs.19,60,000/-. She filed I.A.No.1309 of 2016 under Order XXXVIII, Rule 5 of the Code seeking attachment of two items of property. A-Schedule is 0.136 Ares of property with a shop room. B-Schedule is 6.04 Ares of land together with a double-storied building. Ext.P1 is a copy of the said interlocutory application and Ext.P2 is the objection filed by the petitioners. The 2nd petitioner is the husband of the respondent. The Family Court ordered attachment of both items of the property. The 1st petitioner has filed I.A.No.6 of 2022 seeking to lift the attachment in respect of A-Schedule property. A portion of the said property and the shop room was acquired in the meanwhile and on account of the attachment, award amount could not be received by the petitioners. That was also one of the reasons stated for lifting the attachment. The respondent herein filed objection resisting I.A.No.6 of 2022. The Family Court, after hearing both sides, took the view that since the respondent has a claim over the said A-Schedule property and in order to establish that claim, she filed O.P.No.725 of 2016, the attachment could not be lifted.

5. The learned counsel appearing for the petitioners would submit that the impugned order is illegal inasmuch as the provisions of Order XXXVIII, Rule 6(2) of the Code was violated while dismissing I.A.No.6 of 2022. It is submitted that when the total claim of the respondent was only Rs.19,60,000/-, the court should have accepted B-Schedule property, value of which has been quantified as per Ext.P5 at Rs.67 lakhs as security. The contention of the respondent is that since she has a genuine claim over A-Schedule property, the attachment in respect of the same should be continued, lest her right over the said property would be defeated.

6. A plaintiff/petitioner can apply to the court to attach an immovable property before judgment under Order XXXVIII, Rule 5 of the Code, if the defendant, with the intention of obstructing or delaying the execution of the decree that may be passed in the suit or the petition, is trying to dispose of the property. The purpose of such an attachment is to ensure that the plaintiff/ petitioner is able to execute the decree that may be passed in his favour. Here the claim of the petitioners is a decree for realisation to the tune of Rs.19,60,000/-. Indisputedly, both A and B Schedule properties belong to the petitioners. True, the respondent filed O.P.No.725 of 2016 claiming that she has a claim over A-Schedule property since the same was purchased by the 1st petitioner utilising the fund belonging to the respondent. That is a matter to be adjudicated in O.P.No.725 of 2016. The veracity of Ext.P5 valuation certificate need not be doubted much. It is with