A court must maintain status quo and not weigh the merits of a case when reviewing an order for attachment under the Code of Civil Procedure.

J U D G M E N T

This appeal arises out of the order dated

13.09.2023 in I.A No.1 of 2020 in O.S No.38 of 2020 on the files of the Sub Court, Neyyattinkara.

2. The brief facts necessary for the disposal of the appeal are as follows:-

O.S No.38/2020 is a suit for realization of money, preferred by the appellant / plaintiff as per an agreement of sale dated 26.11.2019, the plaintiff agreed to purchase the property for an amount of Rs.5,25,000/- (Rupees Five Lakhs Twenty Five Thousand Only) per cent and an amount of Rs.40,00,000/- (Rupees Forty Lakhs Only) paid as advance to the 1^st defendant. The period for performance of the agreement was fixed as five months and three days, which would have expired on 30.04.2020. Thereafter the plaintiff paid a further amount of Rs.40,00,000/- to the 2^nd defendant on 29.04.2020. On the same date, the 2^nd defendant executed a sale deed with respect of the plaint B schedule property, which is a part of plaint A schedule property in favour of the plaintiff’s son as per the sale deed No.792/2020 of Balaramapuram SRO. The remaining part of the plaint A schedule property, is scheduled as plaint C schedule and as per endorsement dated 29.04.2020, the 2^nd defendant agreed to sell the plaint C schedule property on receipt of the balance amount of Rs.1,30,00,000/- (Rupees One Crore And Thirty Lakhs Only). Though the defendants demanded execution of the sale deed in respect of the plaint C schedule property, the 2^nd defendant refused to do so and hence the suit. Along with the suit, I.A No.1 of 2020 was preferred seeking attachment under Order XXXVIII Rule 5 of Code of Civil Procedure, 1908 ( for short ‘CPC’). As per the attachment scheduled, an extent of 10 cents out of the plaint C schedule property was sought to be attached as a security for the plaint claimed. On 22.07.2020, the Sub Court, Neyyattinkara, directed the defendants to show cause as to why they shall not be directed to furnish security of Rs.29,85,805/- and in the meantime, the conditional order of attachment was passed. Later, the 2^nd defendant appeared and contested the application and filed counter afÏdavit raising objection regarding the sustainability and continuances of the order of attachment. According to the defendants, the plaintiff had no intention to perform the contract and that the defendants filed an application seeking the plaintiff to perform the contract by offering him an amount of Rs.1,30,00,000/- within three months. In opposition to the said application, the plaintiff contended that after the Covid-19 pandemic, the value of the property has gone down and therefore he is not in a position to perform the contract. On behalf of the plaintiff, Exts.A1 to A6 were marked and Exts.C1 series were marked for the disposal of the Interlocutory Application. The trial court by order dated 13.09.2023, came to a conclusion that the plaintiff is not entitled to continue with the order of attachment, especially since the plaintiff has no bona fides. The trial court found that, since there is only a vague pleading that the defendants were trying to dispose of the property, and no specific averments as to what steps were taken by the defendants to sell the property and to whom he was intending to sell and for what amount etc. were conspicuously absent in the application for attachment and accordingly, the attachment over 10 cents of the property on the eastern side of the entire property on the southern side was lifted and the application was dismissed with cost. Aggrieved by the order, initially the appellant preferred O.P.(C) No.2257/2023, which was dismissed by the judgment dated 22.05.2024 and thereafter the prese