Vijayakumari vs Hari Kumar
2021 Latest Caselaw 5906 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

    THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                         OP(C).No.278 OF 2021

AGAINST THE ORDER DATED 29-09-2020 IN IA NO.1/2020 IN OS 249/2020
                OF MUNSIFF COURT, KARUNAGAPPALLY


PETITIONERS:

      1        VIJAYAKUMARI,
               AGED 57 YEARS,
               D/O SUBHADRA K.,
               RESIDING AT KUMAREETHEPUTHANPURAYIL,
               VADAKKUMURIYIL, PADANAYARKULANGARA,
               KURANAGAPALLI VILLAGE, KOLLAM-690 518.

      2        RAJU,
               AGED 64 YEARS,
               S/O NANU K.,
               RESIDING AT KUMAREETHEPUTHANPURAYIL,
               VADAKKUMURIYIL, PADANAYARKULANGARA,
               KURANAGAPALLI VILLAGE, KOLLAM-690 518.

               BY ADV. SRI.S.SUJIN

RESPONDENT:

               HARI KUMAR,
               AGED 52 YEARS,
               S/O KRISHNA PILLAI,
               RESIDING AT VAISHAKAM,
               VADAKKUMURIYIL, PADANAYARKULANGARA,
               KURANAGAPALLI, KOLLAM-690 518.


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
  O.P.(C) No.278 of 2021
                                        2


                                  JUDGMENT

Dated this the 18th day of February, 2021

Exhibit P5 order passed by the learned Munsiff,

Karunagappally, in O.S.No.249/2020 is challenged in this O.P. by the

defendants. The plaintiff in the suit filed I.A.No.1/2020 under Order

38 Rule 5 CPC, seeking issue of order of conditional attachment

before the judgment and Exhibit P5 exparte order was issued. The

Exhibit P5 order is not a final order. It only called upon the defendants

to furnish the security or to show cause why security shall not be

furnished before a particular date. Conditional order of attachment was

issued in the meantime.

2. Heard the learned counsel for the petitioner. He submits

that the court below issued Exhibit P5 order without considering the

question as to whether the plaintiff succeeded in making out a

primafacie case. He raised serious objections attacking the order

contending that in the facts of the particular case, an order of this

nature should not have been issued.

3. After hearing the learned counsel for the petitioner, I am

of the opinion that he can raise all objections available under the law, O.P.(C) No.278 of 2021

before the court below in support of his request for lifting of

attachment.

In the result this O.P. is disposed of permitting the

petitioner to raise all objections before the court below and the court

below shall dispose of the matter in accordance with law after hearing

the parties.

Sd/-

T.V. ANILKUMAR JUDGE SSK/18/02 O.P.(C) No.278 of 2021

APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LEASE AGREEMENT DATED 1.9.2006 ENTERED INTO BY THE 1ST PETITIONER.

EXHIBIT P2 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE 1ST PETITIONER AND THE RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S.NO.249/2020.

EXHIBIT P4 TRUE COPY OF I.A.NO.1/20 IN O.S.249/20.

EXHIBIT P5 TRUE COPY OF THE ORDER OF ATTACHMENT DATED 29.9.2020 IN I.A.NO.1/20.

SSK/18/02 //TRUE COPY// P.A. TO JUDGE