SAHADEVAN E.N v. P.L.ANTONY

M. SASIDHARAN NAMBIAR, J.------------------------------------------ W.P(C). NO. 28110 OF 2007 ------------------------------------------Dated this the 8th day of July, 2008JUDGMENTPetitioner was not a party to O.S. 1566 of 2005 on the fileof Munsiff Court, Ernakulam. First respondent instituted thatsuit against second respondent claiming Rs.1,00,000/- withinterest and costs contending that the amount was borrowed bythe defendant and a cheque was issued later for its repayment, which was dishonoured. A petition for attachment beforejudgment under Rule 5 of Order XXXVIII of Code of CivilProcedure was filed. In the plaint in paragraph 3 the factsstated in the application under Rule 5 of Order XXXVIII wasreiterated. The relief sought for is for realization of moneycharged upon the assets of the second respondent including herproperty which is scheduled in the plaint. An order ofattachment was originally granted. Second respondent wasdirected to furnish security. That order was challenged beforethe appellate court. The appellate court vacated the order ofattachment. Thereafter first petitioner filed two petitions; one toimplead petitioner herein as the transferer of the property fromsecond respondent and the other under Rule 17 of Order VI to WPC28110/072amend the plaint. The amendment sought for under Ext.P3petition is to add a plea that petitioner is not a bona fidepurchaser and he purchased the property knowing that amountis due to first respondent from the second respondent and adeclaration that alienation of the property in favour of firstrespondent of the charged property is not valid. Under Ext.P2order petitioner was impleaded as additional defendant. UnderExt.P5 order the amendment petition was allowed. This petitionis filed under Article 227 of Constitution of India challenging thesaid orders. 2.Learned counsel appearing for petitioner and firstrespondent were heard. 3.As is clear from Ext.P4 the plaint in O.S. 1566 of2005, suit is for realization of the amount from secondrespondent to the first respondent which was allegedlyborrowed on 11.2.2004. As per the plaint allegation towardsrepayment of the amount, a cheque was issued by the secondrespondent which was subsequently dishonoured and acomplaint was filed under Section 138 of NegotiableInstruments Act which ended in conviction and an appeal ispending. There is no case in the plaint that the property of thesecond respondent which was later purchased by the petitioner WPC28110/073was offered as security. Therefore first respondent cannot claimthat there is a charge in respect of the said property. Thoughoriginally there was an order of attachment, that was latervacated by the appellate court. In such circumstances learnedMunsiff was not justified in impleading the petitioner herein asan additional defendant. When the suit is for realization of themoney and first respondent has no case that plaint scheduleproperty was either mortgaged or charged for the amount duefrom second respondent first respondent is not entitled toimplead the assignee of the property of the second respondenteven if that assignment is not bonafide. In such circumstancesExt.P2 order is quashed. Similarly when first respondent is notentitled to get decree charged on the property owned by secondrespondent, which was later assigned by second respondent tothe petitioner, learned Munsiff should not have allowed firstrespondent to amend the plaint introducing the untenable plea .Ext.P2 and P5 orders are therefore quashed. The petitions toimplead and amend the plaint stand dismissed. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE WPC28110/074Okb/-