Attachment before judgment requires strict compliance with procedural mandates; failure to do so renders the order unsustainable.

JUDGMENT :

(SYAM KUMAR V.M., J.)

Dated this the 2^nd day of May, 2025 This appeal is filed against the order dated 18.03.2024 in I.A. No. 8 of 2024 in O.S. No. 27 of 2021 of the Sub Court, Mavelikara. Appellant was the counter petitioner in the I.A and defendant in the suit. The respondent was the petitioner in the I.A. and plaintiff in the suit. Parties are referred to hereinafter as per their status in the suit.

2. The suit was filed by the plaintiff for realization of Rs. 20,00,500/- with interest from the defendant by charging upon his assets. The case of the plaintiff is that the defendant and his wife are conducting a private school. For the development of the school, they borrowed money from the plaintiff. On 25.09.2017, an amount of Rs.17,50,000/- was borrowed and an agreement was executed by the defendant in favour of the plaintiff stipulating the terms of repayment and interest. However, the said agreement was breached by the defendant and amounts due were not paid to the plaintiff. A legal notice was issued by the plaintiff to the defendant demanding principal amount and balance interest. However, the defendant did not settle the outstanding. Hence, the suit was filed. A petition seeking to attach the property of the defendant was filed along with the suit. However, the defendant managed to defeat the claim and the attached property is now found insufficient to meet the claim amount. The plaintiff later received information regarding some other property over which the defendant has title and she got reliable information that the defendant is attempting to alienate the same as well. Hence I.A. No.8 of 2024 was filed seeking an order of attachment over the relevant property, so as to secure the suit amount. The defendant filed an objection to the I.A., inter alia pointing out that the objective of the plaintiff in filing an attachment petition again and seeking to attach another property is to coerce the defendant to settle the suit. The I.A. had been filed by the plaintiff suppressing material facts in her pleadings. Suppression had been allegedly made by the plaintiff in the earlier I.A. seeking attachment too. The Sub Court, after hearing the parties, rendered the impugned order allowing the petition filed by the plaintiff and attaching the property detailed in the schedule appended to the I.A. The said order is challenged by the defendant in this FAO.

3. A counter affidavit has been filed by the plaintiff producing therewith Annexures R(a) to R(d).

4. Heard Sri. George Varghese (Perumpallikuttiyil), Advocate for the appellant/defendant and Sri Johnson Gomez, Advocate for the respondent/plaintiff.

Contentions of the Appellant( defendant) in brief:

● The order of attachment before judgment issued by the Sub Court is erroneous and unsustainable in law.

● There has already been an attachment of the properties of the defendant earlier at the instance of the plaintiff in the very same suit. Two items of property lying adjacent to the State Highway having an extent of 35 cents (with a building of 2200 Sq. Ft.) and 10 cents respectively had already been attached by the plaintiff.

● The particulars of the property, including the existence of the building, had been wilfully suppressed in the application and the value of the property had been shown as Rs. 4 lakhs. The defendant had filed an objection challenging the allegations in the suit as well as in the said attachment petition.

● As regards the 2^nd item of property thus attached, a claim petition had been preferred by the person who had purchased the property prior to the institution of the suit and the said claim petition is pending consideration. This is the ruse now to seek further attachment of other properties by the plaintiff.

● Two and a half years after the first attachment, the plaintiff has now chosen to file I.A.No. 8 of 2024 seeking attachment before judgment of further items of property viz., an extent of 6.50 cents along with the building thereon owned by the defendan