The main legal point established is the requirement for concrete evidence and a prima facie case to attach property before judgment, as well as the importance of following the procedure prescribed under Order XXXVIII Rule 5 of C.P.C.

JUDGMENT

(Prayer: Petition filed under Article 227 of the Constitution of India, to set aside the order and decreetal order dated 22.07.2022 of the learned Additional District Judge of Kuzhithurai, made in I.A.No.2 of 2019 in O.S.No.173 of 2019 on his file, dismissing the said I.A.)

1. The petitioners are the defendants in O.S.No.173 of 2019 filed by the respondent on 10.08.2019 before the Principal District Court, Kanyakumari at Nagercoil.

2. The petitioners are aggrieved by the impugned order passed by the Court below in I.A.No.2 of 2019 seeking to attach seven different properties. The relevant portion of the impugned order reads as under:-

''''5. The point for consideration whether this petition as to be allowed or not? Heard both Sides arguments, Perused the petition and Counter averments,

The petitioners side no oral and documentary evidence has been let in on the respondent side Ex.R1 marked no oral evidence let in.

i) The petition is filed by the Petitioner/Plaintiff for under Order 38 Rule 5 under 151 of C.P.C. to attach the petition mentioned property before judgment.

ii) The main contention of the petitioner is that there is a lawful apprehension that the Defendants/respondents intend to sale property to any third parties two defray the plaintiff is lawful claim. Hence he pray for allow this application.

iii) The respondent filed of a detailed counter alleging that the husband of the first respondent and father of the second and third respondent filed an insolvency petition No.3/2015 before the Hon''ble Principal District Court and Kanyakumari at Nagercoil, which has been marked as Ex.R1 in this petition in that in page 15 Serial No.3, the petitioner/plaintiff name was mentioned. Hence this pray for dismissal of this petition.

while so on perusal of Ex.R1 it is true that the petition was filed by P.N.Uadyar Pillai and he was died on 18.01.2017. But no legal heirs has been impleaded till 17.02.2021 further the Insolvency Petition No.3/2015 not at all disposed by the Hon''ble Principal District Judge Kanyakumari at Nagercoil till this date.

iv) To sum of everything the apprehension of the petitioner/plaintiff of lawful one hence this court inclined to allow this Petition and point for consideration decided in favour of the petitioner.

In the result this petition is allowed. Attach by 05.09.2022. Batta in 3 days. Call on 05.09.2022.''''

3. On behalf of the petitioners, the learned counsel for the petitioners submits that the suit is based on a fabricated promissory note dated 18.01.2017, which is said to have been executed by the first petitioner herein [first defendant] along with her husband Late.Udayar Pillai, who died on 18.01.2019. It is submitted that the pre-suit notice dated 27.07.2019 was addressed to the address at Kuzhithurai and within 15 days of the said notice, the suit was filed on 10.08.2019. It is specifically stated that the said notice was not received by the petitioners. It is therefore submitted that the petitioners have also filed a written statement, where they have disputed the execution of the alleged promissory note, dated 18.01.2017.

4. It is submitted that there is no scope for attaching the property before judgment under Order XXXVIII Rule 5 of C.P.C. He further submits that the plaint is cryptic and also does not disclose the date of the amounts borrowed. The learned counsel for the petitioners, however, fairly submits that the first petitioner''s husband and the father of petitioners 2 and 3 Late.Udayar Pillai had indeed borrowed a sum of Rs.10,00,000/- from the respondent/plaintiff in the year 2013 and had also paid interest upto 2015 and thereafter, on account of various factors, was unable to repay the amounts to the respondent herein.

5. It is submitted that the first petitioner''s husband Late.Udayar Pillai had also filed I.P.No.3 of 2015 before the Princi