A court may lift an attachment only upon provision of security sufficient to satisfy the decree amount, as per the provisions of the Code of Civil Procedure.

JUDGMENT

Aggrieved by the order in I.A. No.7/2022 in I.A.No.15241/2019 in O.S. No.5197/2017(Ext.P8) of the Court of the Principal Munsiff, Thrissur, the plaintiff in the suit has filed the original petition. The respondents are the defendants in the suit.

2. The relevant facts for the determination of the original petition are: the petitioner is the plaintiff in the above suit filed against the respondents for a decree for realisation of an amount of Rs.5,88,500/- with interest. Along with the suit, the petitioner had filed I.A.No.19256/2017 to attach before judgment the properties of the second respondent. The application was allowed. The respondents 2 and 3 have filed Ext.P3 written statement admitting the transaction, but alleged that the amount was obtained for the business purpose of the first respondent, and, therefore, she alone is liable to repay the amount. The first respondent filed Ext.P4 written statement denying the allegations in the plaint and the transaction in particular. On learning that the first respondent has only 1/3rd right over the attachment schedule property, the petitioner filed I.A. No.15241/2019 to modify the order of attachment to the property of the first respondent. The application was allowed. The first respondent filed I.A. No.7/2022 to lift the attachment over the attachment schedule property. The petitioner resisted the application, by filing Ext.P5 written objection and contended that the attachment could be lifted only on first respondent furnishing security for the principal amount with upto date interest, which would works out to Rs.10,58,332/- The respondents 2 and 3 also resisted the application by filing Ext.P7 written objection. The court below, by the impugned Ext.P8 order, allowed Ext.P5 application. Ext.P8 is erroneous, irregular and unsustainable in law. Hence, the original petition.

3. Heard; Sri.P.B.Krishnan, the learned counsel appearing for the petitioner, Sri. Eldho Paul, the learned counsel appearing for the first respondent and Sri. R.

Sreehari, the learned counsel appearing for the respondents 2 and 3.

4. Sri.P.B.Krishnan, assailed the impugned order on the ground that the court below has not appreciated Order XXXVIII of the Code of Civil Procedure (in short ‘the Code’) in its proper perspective. He contended that Ext.P1 plaint was instituted to recover an amount of Rs.5,88,500/- from the respondents. The property of the first respondent was attached before judgment as per the order in I.A. No.15241/2019. The first respondent did not furnish any security as contemplated under Order 38 Rule 5 of the Code and the order of conditional attachment was made absolute. It was later, on 28.03.2022, that the first respondent filed Ext.P5 application to lift the order of attachment on the ground that the first respondent was ready to furnish cash security. Even though, the petitioner resisted the application, the same was allowed by the court below directing the first respondent to furnish security for an amount of Rs.5,88,500/-. Sri. P.B.Krishnan, drew the attention of this Court to Order 38 Rule 5 (b) of the code and contended that, under the said provision security is to be furnished to satisfy the decree amount and not the plaint claim unlike the provision under Order 38 Rule 1 of the Code, in a case of arrest before judgment. Hence, he contended that the impugned order is wrong.

5. Sri. Eldho Paul countered the above submission and submitted that the court below has exercised its discretionary powers and passed Ext.P8 order. The petitioner has sought for the realisation of an amount of Rs.5,88,500/-. The first respondent has offered cash security for the said amount. The contention of the petitioner is quite hypothetical because it can never be assumed whether the suit would be allowed or dismissed. The first respondent is being denied of her constitutional right to deal with the property. He relied on the decision of this Court in Joy v. Cherukutty [1991 (I) KLT 393] and conten