Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 18TH DAY OF AUGUST 2023 / 27TH SRAVANA, 1945 AGAINST THE ORDER DATED 20.07.2023 IN I.A.NO.1/2023 IN O.S.NO.21/2023 OF SUB COURT, KOTTARAKKARA REVISION PETITIONER/COUNTER PETITIONER/DEFENDANT: AROMAL MANOJ, AGED 28 YEARS, S/O.RAM MANOJ, CHINMAYA SOUDHAM, PORUVAZHI P.O, PANAPPATTI MURI, SASTHAMKOTTA VILLAGE, KUNNATHOOR TALUK, KOLLAM DISTRICT - 690 520 BY ADVS. S.ABHILASH K.SIJU ANJANA KANNATH FATHIMA MOHAN GOPIKA T.G. AHSANA JOMY JOB RESPONDENT/PETITIONER/PLAINTIFF: SHAJI, AGED 57 YEARS, S/O.SOMANATHAN, THEKKUVILA MELATHIL VEEDU, KUDAVATOOR MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT - 691 512 BY ADV VISHNU BHUVANENDRAN THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
This revision was filed under a wrong impression that no appeal is permissible as against the order passed on an application submitted under Order XXXVIII Rule 5 C.P.C. presumably on the ground that the legal position was laid down by a Division Bench of this Court in Mathukutty Mathew v. Sunny (2015 (1) KLT 620).
Order XXXVIII Rule 5 and 6 C.P.C. are extracted
below for reference: Rule 5. Where defendant may be called upon to furnish security for production of property.-
(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intend to obstruct or delay the execution of any decree that may be passed against him,-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part
of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
(4) If an order of attachment is made without
complying with the provisions of sub-rule (1) of this rule, such attachment shall be void. Rule 6 Attachment where cause not shown or security not furnished.-(1) Where the defendant fails to show cause why he should not furnsh security , or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.
(2) Where the defendant shows such cause or
furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.
Rule 5 in fact deals with a mandatory requirement of show cause notice to the defendant/opposite party in an application for attachment before judgment with a precautionary measure of interim conditional attachment. Sub- rule (3) to Rule 5 of Order XXXVIII C.P.C. is only an interim arrangement and would stand only till the date fixed by the court for furnishing the security in compliance of show cause notice. When no security was furnished in answer to the show cause notice and no show cause was shown, the matter thereon would switch to Rule 6 of
Order XXXVIII C.P.C. and every order passed after
the issuance of show cause notice, other than the one under sub-rule (3) of Rule 5 of Order XXXVIII C.P.C. would fall under Rule 6, which is an appealable order. Hence, the abovesaid decision shall not be misread. It is pertaining to an
order which can be passed under Rule 5 and not
under Rule 6. The present matter would come under Rule 6, hence, appeal is maintainable. Without prejudice to the right of party to maintain an appeal, the present revision is hereby dismissed. Sd/- P.SOMARAJAN JUDGE rkr-18/08 APPENDIX OF CRP 223/2023 PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE PLAINT IN O.S NO.21/2023 PENDING BEFORE THE SUB COURT, KOTTARKKARA DATED 12.6.2023 Annexure A2 A TRUE COPY OF THE I.A NO.1/2023 IN O.S NO.21/2023 FILED BEFORE THE SUB COURT, KOTTARAKKARA DATED 12.6.2023 Annexure A3 A TRUE COPY OF THE OBJECTION IN I.A NO.1/2023 FILED BY THE REVISION PETITIONER/DEFENDANT BEFORE THE SUB COURT, KOTTARAKKARA ON 17.6.2023 RESPONDENT ANNEXURES: NIL //TRUE COPY// PA TO JUDGE