Assessment of property attachment requires consideration of value and necessity in breach of sale agreement cases.

JUDGMENT

The grievance of the petitioner is against the dismissal of an attachment application. The case of the petitioner is that pursuant to an agreement for sale, an amount of Rs.45,00,000/- was advanced to the respondents and the petitioner also made some improvements to the property. Later, the petitioner came to understand that the respondents had only possessory rights over property and it is also stated that the respondents could not show the actual extent of the property by measurement. It is in the above circumstances that the petitioner wanted refund of the advance paid and the amounts spent by him for improvement of the property. For securing the amount, the petitioner sought the attachment of the properties of the respondents. The court below by Ext.P10 order dismissed the petition and the conditional attachment which had been ordered on 24.09.2025 was also lifted. The court below has gone into the question of the plaintiff’s financial capacity to comply with the agreement and other aspects which are more relevant in a case for specific performance of the contract for sale. 2. The contention of the respondents/defendants is that the breach occurred on the side of the petitioner and despite extending the period fixed in the agreement, the petitioner could not comply with the requirements. During the hearing, the counsel for the respondents submitted that they have already filed a written statement and a counter claim for the loss caused to them due to the petitioner not complying with his part of the contract. Since there is a plaint as well as a counter claim, it is not proper for this Court to decide finally the requirement of attachment. The counsel for the respondents also has a case that the entire extent of the petition schedule property need not be attached since the property is having much larger extent and only a portion of the said property was agreed to be sold. The counsel for the respondents also relied on a decision of this Court in Smitha v. P.C.Varghese and Another [ 2016(2) KHC 793 ] and a decision of a Full Bench of this Court in Sadasivan K. v. Surendradas [ 2020 (5) KHC 461 ] to submit that the court was bound to consider the value of the property that is required to be attached and whether the entire extent was required to be attached.

3. Having considered the contentions on either side and gone through the impugned order, I am of the opinion that a reconsideration is required on the facts stated. In the result, the impugned order is set aside. The court below is directed to reconsider the question of attachment. While considering the above aspect the court below shall take into account the value of the property that is sought to be attached, the question whether the entire property needs to be attached, the contention of the respondents regarding their counter claim and such other matters that may be relevant for the issue.

The original petition is disposed of as above.

Sd/-