Order 38 Rule 5 - Sale Deed executed prior to attachment cannot be ignored . Rights of the attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property .If a person in whose favour the agreement for sale is executed , he can avoid the attachment . The person in whose favour the sale is executed before judgment has valid claim. When the document is executed on a particular day, it requires more evidence than solitary evidence of the defendant to show that it was not executed on that day. [Abdul Jalal vs M/s. Mariya Financiers. 2002 (2) KLT 107 = 2002 (1) KLJ 482. S.Sankarasubban & R.Bhaskaran (JJ)]
Order 38 Rule 1 - Attachment lifted on an undertaking given by the defendant that he will not encumber without sanction from the court. Defendant filed a petition for communicating the said order of lifting the attachment. Rejection of the said prayer is correct. Undertaking given by the defendant actually tantamounts to an attachment. Sending of such communication will amount to confusion and difficulties. [Jayan vs Sekharan. CRP.No. 746 of 1999 . Dt. 9-11-2000. M.R.Hariharan Nair (J)]
Order 38 Rule 6- Order refusing attachment before judgment - No appeal will lie - Revision under Sec. 115 is maintainable - On a reading of the plaint, prima facie case is made out - Mere possibility of granting a compensation under Sec. 357 of the Cr.P.C is not a ground for rejection of the petition .[N.J.Varghese vs Sasi and others .2001(1) KLJ 299 = 2000(1) KLT 489 . M.R.Hariharan Nair (J)]
Order 21 Rule 48 -Attachment of salary of judgment debtor - Discretion of Garnishee can come intoo play after the court discretion - It does not mean that the court is left without any discretion [ A.A.Mohammed vs Roniya Kuries . 2001(1) KLT 876 . M.R.Hariharan Nair (J)
Sec. 60 - Attachment of salary of guarantor - Repayment of temporary advance taken from GPF is not exempt and cannot be excluded. Attachment of one third of cash payment could be attached. It is not necessary to pass an award under Sec. 69 of the Kerala Co-operative Societies Act before attachment . [ Smt.Florence Mabel vs. State of Kerala. AIR 2001 Ker 19. M.R.Hariharan Nair (J)]
ec. 73 - A person who has merely obtained an attachment before judgment cannot put up a claim for ratable distribution unless he has obtained a decree and made an application for execution. [Shaji vs Dineshan. 199891) KLT 917 = 1998(2) KLJ 647. S.Sankarasubban(J)]