IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.2362 OF 2019 (GM-CPC) BETWEEN Muniswamaiah N., S/o. Late Nanjundaiah, Aged about 38 years, R/at #1, 4th E Cross, Rajini Farm, Rajeshwari Nagara, Laggere, Bengaluru-560058.
(By Sri. K.Sreedhar, Advocate) AND Sri. Ashok Kumar C., S/o. Chandrashekar, Aged about 35 years, R/at No.38, ‘Bhagavan Mane’, 1st Cross, Near St. Mary’s School, Rajeshwari Nagara, Laggere, Bengaluru-560058.
(By Sri. M.N.Raghu, Advocate for C/R) …Petitioner …Respondent This Writ Petition is filed under Article 227 of the Constitution of India praying to set aside the order dated 14.01.2019 on I.A.No.1 pending on the file of XXIII Additional City Civil and Sessions Judge at Bengaluru (CCH-33) in O.S.No.1567/2018 vide annexure-H respectively the same is unsustainable in the facts and circumstances of the case.
This Writ Petition coming on for preliminary hearing this day, the court made the following:
ORDER Heard the petitioner’s counsel. Counsel for caveator/respondent is present.
2. Petitioner has challenged the order at Annexure- H passed by the trial court on I.A.No.1 filed under Order XXXVIII Rule 5 of the Code of Civil Procedure Code (‘CPC’ for short). This application appears to have been filed at the time of evidence. The trial court having heard the plaintiff and the defendant allowed the application. Actually, writ petition is not maintainable. Though the trial court has passed the order according to Order XXXVIII Rule 5 CPC, actually it is an order under Order XXXVIII Rule 6 CPC and therefore the appeal lies in such a circumstance. Though an order of attachment is passed, the defendant is always at liberty to seek for raising the attachment, if he is ready to give security. Giving this liberty to the writ petitioner, this petition is dismissed.
Sd/- JUDGE ckl