Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the order no.95 dated March 18, 2010 passed by the learned Civil Judge (Senior Division), Sixth Court, Alipore, District " South 24 Parganas in Money Suit No.19 of 2001 thereby rejecting an application under Order 38 Rule 5 of the C.P.C.
(2.) THE plaintiff/petitioner herein instituted a suit being Money Suit No.19 of 2001 claiming Rs.1 crore for defamation. THE defendants/opposite parties are contesting the said suit. During pendency of the suit, the plaintiff filed an application under Order 38 Rule 5 of the C.P.C. on December 14, 2001 and the defendants filed their written objection against the said application. Upon hearing both the sides, the learned Trial Judge rejected the application for attachment before judgment. Being aggrieved, this application has been preferred by the petitioner. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the ground of defamation is that as per order of the Court, the parties were to maintain status quo with regard to the suit property. But, instead of doing that, the defendant took Rs.50,000/- only from each of the proforma defendants for allowing them to use the suit properties as passage to their residence and that the defendants are going to dispose of the suit properties. For that reason, they prayed for attachment before judgment. It may be noted herein that the contesting defendants are the co-owners of the properties mentioned in schedule "A", "B" and "C" of the plaint. The plaintiff also claims as a co-owner of the said properties. Thus, I find that the plaintiff as a co-owner, has claimed attachment before judgment in respect of the ancestral properties against the other co-owners. He has prayed for attachment of the properties, as described in schedule "A", "B" and "C" of the plaint.
(3.) PREVIOUSLY, one partition was held amongst the co-owners. The original owner of the suit properties executed and registered a deed of family settlement dividing his properties in the year 1974 and he settled of his properties in favour of his two sons, namely, Gopal Chandra Halder and Gobinda Chandra Halder. Subsequently, the plaintiff filed a suit for partition being Title Suit No.22 of 1997 and the plaint was returned to the plaintiff by an order no.32 dated September 30, 1982 with the observation that the plaintiff was not a co-sharer in the schedule "A" and "B" of the properties and that if the plaintiff had any share in the schedule "C" properties, the plaintiff was given liberty to institute a suit with the Court having jurisdiction over the "C" schedule properties. But still then, the plaintiff is proceeding with the present suit claiming his right, title and interest in the suit properties.;