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IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANU, J
M/S.ELSTONE TEA ESTATES LIMITED – Appellant
Versus
PIUS.C.MUNDADAN – Respondent
FAO NO. 131 OF 2025
Certainly. Based on the provided legal document, here are the key points summarized:
The appeal was filed against an order under Order 38 Rule 5 of the Civil Procedure Code (CPC), which involved the attachment of assets pending a monetary claim. The court examined whether such an appeal was maintainable given the nature of the attachment and found that, since a conditional attachment was imposed, the appeal was indeed maintainable (!) .
The initial attachment in question was found to be excessive, as the property attached could not be identified and was reported to be a reserved forest. Additionally, subsequent proceedings, including the setting aside of an ex parte decree by the Supreme Court, rendered the attachment ineffective. Therefore, the contention that the attachment was still in force was rejected (!) .
The court noted that the amount in the defendant’s account was released to the appellant company based on a court order, but the order explicitly allowed third parties to invoke legal mechanisms, including attachment, to claim against that amount. This indicated that third parties could seek attachment or recovery of the amount, which justified the attachment proceedings (!) (!) .
The appellant argued that the amount sought to be attached was not property absolutely vested in the defendant company, as it was obtained through a bond related to a dispute over land titles. The court observed that the appellant had furnished bonds and that the government’s claim was subject to ongoing litigation, which justified the attachment to secure the plaintiff’s claims (!) (!) .
The appellant also contended that the company possessed vast landed properties, making attachment of the account unnecessary. However, the court recognized that due to ongoing disputes over the company's title, securing the claim through attachment of the account was justified (!) .
The court emphasized that the appeal was maintainable because the order under Order 38 Rule 5 also involved granting the relief of attachment, and relevant legal principles supported the right to appeal in such circumstances (!) .
Ultimately, the court dismissed the appeal, affirming the trial court’s order, and clarified that the attachments and security measures were justified given the circumstances, including the ongoing litigations and the court’s orders allowing third-party claims (!) .
The final order was that the appeal was dismissed with no costs, confirming the legality and appropriateness of the trial court’s order regarding security and attachment measures (!) .
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| Table of Content |
|---|
| 1. defendants filed an appeal regarding a court directive. (Para 1 , 2 , 3) |
| 2. discussion on the adequacy of existing attachments. (Para 4 , 5) |
| 3. arguments on the maintainability of the appeal. (Para 6 , 7 , 8) |
| 4. court establishes the foundations for maintaining the appeal. (Para 9 , 10 , 11) |
| 5. final ruling on the appeal and its implications. (Para 12 , 13 , 14 , 15) |
| 6. conclusion with court's final order. (Para 16) |
JUDGMENT
Defendants 1 to 4 in O.S.No.133 of 2013 on the files of the Sub Court, Ernakulam, have filed this appeal aggrieved by the order dated 29.10.2025 in I.A.No.9 of 2025. The 1st respondent herein filed the I.A. under Order 38 Rule 5 of the Code of Civil Procedure to direct the defendants to appear and show cause why they shall not be called upon to furnish security for an amount of Rs.38,40,000/- towards the monetary claim raised in the suit, court fee etc. and also to issue an interim order of conditional attachment for the said amount lying in the account of the 1st defendant maintained with Indian Bank, Kalpetta Branch. The respondents filed counter and resisted the application. The learned Sub Judge heard the parties and allowed the I.A by the impugned order. The defendants have been directed to provide security within one month from the date of the order or to show cause why the same shall not be furnished. An order of conditional attachment was also issued as prayed for.
2. Heard the learned counsel for the appellants and the learned counsel for the 1st respondent.
3. Learned counsel for the appellant assailed the impugned order by raising various contentions. He submitted that in the suit originally there was an attachment granted in I.A.No.1012 of 2013. He submitted that the suit was decreed exparte. Application for setting aside the exparte decree was rejected by the Trial Court. Challenge against the same was repelled by this Court. Finally, the appellants got relief in SLP No.15592 of 2022 from the Apex Court. The Hon’ble Supreme Court set aside the exparte decree subject to payment of cost to the 1st respondent. The learned counsel hence submitted that the attachment ordered in I.A.No.1012 of 2013 is sufficient to protect the interest of the 1st respondent. He submitted that excessive attachments cannot be justified and the impugned order amounts to excessive attachment. The learned counsel further submitted that the 1st respondent, in the plaint averments, has stated that the 1st appellant Company owns vast extents of properties. To the contrary, the 1st respondent adopted a contention in I.A.No.9 of 2025 that the amount available in the account sought to be attached was the only available asset of the appellant Company. The learned counsel further submitted that the basic requirement of an application for attachment is that the property sought to be attached shall be the property of the defendant/debtor. In the case at hand the amount sought to be attached was obtained by furnishing bond as directed by the Division Bench of this Court as the Government has filed suit against the 1st appellant Company disputing its title over the estates. The Government acquired a portion of an estate of the Company for rehabilitation of sufferers of a land slide and the compensation was released as directed by this Court. The appellant – Company has furnished bond for repayment of the amount to the Government in case the suit being decreed in favour of the Government. These aspects have been pleaded by the 1st respondent himself before the Trial Court. The learned counsel for the appellant hence submitted that the amount sought to be attached was even according to the case of the 1st respondent, not a property absolutely vested with the 1st appellant Company. In such a situation granting of attachment was not justified.
4. The learned counsel for the appellant also submitted that if the 1st respondent has a case that the amount available in the account of the 1st appellant Company is absolutely a pr
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