The court emphasizes the necessity of establishing a prima facie case before granting a conditional attachment under Order XXXVIII Rule 5 CPC.

JUDGMENT

Challenge in this F.A.O is against the order dated

11.06.2025 in I.A No.1 of 2024 in O.S No.145 of 2024 pending before the Subordinate Judge’s Court, Ottappalam. By the impugned order the learned Civil Judge allowed the I.A making conditional attachment absolute. The 2^nd respondent in the I.A/2^nd defendant is the appellant in this F.A.O.

2. The suit was for realization of money allegedly due from the defendants to the the 1^st respondent/plainti

3. Brief facts are as under :-

Petitioner/plaintiff in the suit was made to believe by the respondents/defendants that a building is available in Coimbatore for an amount of Rs. 1,00,00,000/- (Rupees One Crore only). Pursuant to an oral agreement the petitioner/plaintiff paid a total amount of Rs. 25,00,000/- (Rupees Twenty Five Lakhs only) to the respondents/defendants. On 29.11.2022, the 2^nd respondent/2^nd defendant asked the petitioner/plaintiff to come to the shop of the 1st respondent/1^st defendant. When the petitioner/plaintiff reached the shop, respondents took photographs of the petitioner/plaintiff with an idol in his hand. Later, W.P.(C) Nos.1661 of 2023 and 19048 of

2024 was filed by the respondents/defendants before this Court for police protection. Seeking recovery of money, the suit was filed. I.A No. 1 of 2024 was filed for attachment of the property belonging to the respondents/defendants. Conditional attachment was granted and notices were issued to the respondents/ defendants. The respondents/ defendant filed counter in the I.A. They submitted that there was no understanding between the parties for purchasing the building as alleged in the claim. According to them they as well as the petitioner/plaintiff and one Korambayil Hamsu @ Hamsa Haji were in good terms. Each of the respondents/defendants entrusted Rs. 12.5 Lakhs each with the petitioner/plaintiff for purchasing an antique statue of lord Ganapathy. However, the said statue was seized by Police and later it was found that it was not an antique statue. Thereafter, the petitioner/plaintiff and Hamsa Haji unleashed fear, demanding that the respondents/defendants should compensate the loss suffered by them. The respondents/ defendants filed a police complaint and later filed writ petitions for police protection. Finally Crime No.165 of 2023 was registered by Cherpulassery Police against the petitioner/ plaintiff. According to the respondents/

defendants, on 09.04.2024, the petitioner/ plaintiff trespassed into the shop room of the 2nd respondent/2^nd defendant and attempted to kill him. Crime No.212 of 2024 was registered by Cherpulassery Police in connection with the said incident. The respondents/defendants contended that there was no merit in the application for attachment and therefore it is liable to be dismissed.

The learned Civil Judge heard the parties and passed the impugned order by making the attachment absolute.

4. Heard the learned Counsel for the petitioner and the learned Counsel for the 1^st respondent. There is no appearance for the 2^nd respondent.

5. The learned Counsel for the petitioner/plaintiff submitted that the impugned order is illegal and liable to be set aside. The learned Counsel argued that the paramount considerations with respect to an application under Order XXXVIII Rule 5 CPC are as to whether the petitioner/plaintiff has made out a strong prima facie case and whether respondents/defendants is likely to dispose of the whole or any part of his property or he is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court concerned. He submitted that the 1st respondent herein has not satisfied the conditions for obtaining an order of attachment in the case at hand. He pointed out that there are serious discrepancies i