IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
OP(C).No.1146 OF 2020
I.A.NO.2115/2017 IN OS 129/2017 OF IInd ADDITIONAL SUB
COURT,TRIVANDRUM
PETITIONERS/PETITIONERS/PLAINTIFFS:
1 PRADEEP
AGED 43 YEARS
S/O. KARUNAKARAN,
PROPRIETOR, SMERA CONSTRUCTION,
PUTHENPURA HOUSE,
MELKULANGARA, VAYAKKAL P.O. KOTTARAKKARA,
KOLLAM 691 532.
2 S. KRISHNA KUMAR,
AGED 42 YEARS
S/O. SASIKUMARAKURURP, CHIRAYATH, LAKSHMI
VILASAM, PADINJATTINKARA, KOTTARAKKARA 691 506.
BY ADVS.
SRI.G.KRISHNAKUMAR
SRI.B.S.SURAJ KRISHNA
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 INDIRA CHARITABLE TRUST
A REGISTERED CHARITABLE TRUST,
HAVING ITS ADMINISTRATIVE AND REGISTERED OFFICE
AT RAJADHANI BUILDINGS, EAST FORT,
THIRUVANANTHAPURAM 695 023, REP. BY ITS CHAIRMAN
AND MANAGING TRUSTEE DR. BIJU RAMESH, AGED 54
YEARS, S/O. RAMESH, RAJADHANI BUILDINGS,
EAST FORT, THIRUVANANTHAPURAM 695 023.
O.P.(C)Nos.1146 and 1178 of 2020
:-2-:
2 DR. BIJU RAMESH,
AGED 54 YEARS
S/O. RAMESH, CHAIRMAN AND MANAGING TRUSTEE,
INDIRA CHARITABLE TRUST, RAJADHANI BUILDINGS,
EAST FORT, THIRUVANANTHAPURAM 695 023.
3 RANI BIJU,
AGED 49 YEARS
W/O. DR. BIJU RAMESH, MEMBER SECRETARY,
INDIRA CHARITABLE TRUST, RAJADHANI BUILDINGS,
EAST FORT, THIRUVANANTHAPURAM 695 023.
4 RESHMA RAMESH,
AGED 28 YEARS
D/O. DR. BIJU RAMESH, MEMBER INDIRA CHARITABLE
TRUST, RAJADHANI BUILDINGS, EAST FORT,
THIRUVANANTHAPURAM 695 023.
5 MEGHA RAMESH,
AGED 26 YEARS
D/O. DR. BIJU RAMESH, MEMBER INDIRA CHARITABLE
TRUST, RAJADHANI BUILDINGS, EAST FORT,
THIRUVANANTHAPURAM 695 023.
R1-5 BY ADV. SRI.C.P.SAJI
R1-5 BY ADV. SMT.P.DEEPTHI
R1-5 BY ADV. SMT.P.DEEPA MOHAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
07.01.2021, ALONG WITH OP(C).1178/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)Nos.1146 and 1178 of 2020
:-3-:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
OP(C).No.1178 OF 2020
I.A.NO.1139/2018 IN OS 73/2018 OF IInd ADDITIONAL SUB COURT,
TRIVANDRUM
PETITIONERS/PETITIONERS/PLAINTIFFS:
1 PRADEEP
AGED 43 YEARS
S/O. KARUNAKARAN, PROPRIETOR, SMERA
CONSTRUCTION, PUTHENPURA HOUSE, MELKULANGARA,
VAYAKKAL P.O, KOTTARAKKARA, KOLLAM 691 532
2 S. KRISHNA KUMAR,
AGED 42 YEARS
S/O. SASIKUMARAKURUP, CHIRAYATH, LAKSHMI
VILASAM, PADINJATTINKARA, KOTTARAKKARA 691 506
BY ADVS.
SRI.G.KRISHNAKUMAR
SRI.B.S.SURAJ KRISHNA
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 INDIRA CHARITABLE TRUST
A REGISTERED CHARITABLE TRUST, HAVING ITS
ADMINISTRATIVE AND REGISTERED OFFICE AT
RAJADHANI BUILDINGS, EAST FORT,
THIRUVANANTHAPURAM 695 023
REPRESENTED BY ITS CHAIRMAN AND MANAGING TRUSTEE
DR. BIJU RAMESH, AGED 54 YEARS, S/O. RAMESH,
RAJADHANI BUILDINGS, EAST FORT,
THIRUVANANTHAPURAM 695 023
O.P.(C)Nos.1146 and 1178 of 2020
:-4-:
2 DR. BIJU RAMESH,
AGED 54 YEARS
S/O. RAMESH, CHAIRMAN AND MANAGING TRUSTEE,
INDIRA CHARITABLE TRUST, RAJADHANI BUILDINGS,
EAST FORT, THIRUVANANTHAPURAM 695 023
3 RANI BIJU,
AGED 49 YEARS
W/O. DR. BIJU RAMESH, MEMBER SECRETARY, INDIRA
CHARITABLE TRUST, RAJADHANI BUILDINGS,
EAST FORT, THIRUVANANTHAPURAM 695 023
4 RESHMA RAMESH,
AGED 28 YEARS
D/O. DR. BIJU RAMESH, MEMBER INDIRA CHARITABLE
TRUST, RAJADHANI BUILDINGS, EAST FORT,
THIRUVANANTHAPURAM 695 023
5 MEGHA RAMESH,
AGED 26 YEARS
D/O. DR. BIJU RAMESH, MEMBER INDIRA CHARITABLE
TRUST, RAJADHANI BUILDINGS, EAST FORT,
THIRUVANANTHAPURAM 695 023.
R1-5 BY ADV. SRI.C.P.SAJI
R1-5 BY ADV. SMT.P.DEEPTHI
R1-5 BY ADV. SMT.P.DEEPA MOHAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
07.01.2021, ALONG WITH OP(C).1146/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)Nos.1146 and 1178 of 2020
:-5-:
Dated this the 7th day of January, 2021
J U D G M E N T
O.P.(C)No.1146/2020 arises from O.S.No.129/2017 on the file of IInd Additional Sub Court, Thiruvananthapuram. O.P.(C)No.1178/2020 arises out of the proceedings of the same court in O.S.No.73/2018. The petitioners in both matters are hte plaintiffs.
2. Both the suits were filed for recovery of realisation of money by the same plaintiff against the same defendants. It is submitted that in both the suits, conditional orders of attachment before judgment were issued by the court at the request made by the plaintiff. At some point of time, the respondents were set ex parte for their absence from the proceedings. Thereupon, the respondents filed applications seeking to set aside the ex parte order passed against them. The grievance of O.P.(C)Nos.1146 and 1178 of 2020 :-6-:
the petitioners is that before adjudicating the applications filed for setting aside the ex parte order, the court below went on to take up and decide the petitions for attachment before judgment contrary to principles of procedural law. The plaintiffs being aggrieved by the action of the court below, filed both these original petitions invoking Article 227 of the Constitution of India for a direction to be issued to II nd Additional Sub Court not to proceed to decide the applications for attachment before judgment in both suits before disposing of the petitions for setting aside the ex parte order.
3. I heard the learned counsel for the respondents. Learned counsel Smt.Deepa Mohan submitted that she has no objection in direction being given to the IInd Additional Sub Judge, Thiruvananthapuram, in taking up I.A.No.1/2020 in O.P.(C)Nos.1146 and 1178 of 2020 :-7-:
O.S.No.129/2017 and I.A.No.1/2020 in O.S.No.73/2018 and disposing it of before the learned Judge proceeding to decide I.A.No.2115/2017 and I.A.No.1139/2018 in the respective suits. I am also inclined to accept the legal position canvassed by the petitioners in both these matters that it is not legally fair to decide the applications for attachment before deciding the petitions for setting aside the ex parte order.
In the result, both the original petitions are allowed with direction to the IInd Additional Sub Judge, Thiruvananthapuram, to take up and dispose of I.A.No.1/2020 in respective suits before proceeding to decide the applications for attachment before judgment in the suits. It is further directed that the impugned applications in the suits shall be disposed of by the learned Judge of IInd Additional Sub Court, Thiruvananthapuram, O.P.(C)Nos.1146 and 1178 of 2020 :-8-:
within a period of one month from the date of receipt of certified copy of this order.
All pending interlocutory applications are closed.
Sd/-
T.V.ANILKUMAR JUDGE ami/ O.P.(C)Nos.1146 and 1178 of 2020 :-9-:
APPENDIX OF OP(C) 1146/2020 PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO. 129/17 ON THE FILES OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE IA NO. 2115/2017 IN OS NO. 129/17 ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FIELD BY THE 2ND RESPONDENT/ 2ND DEFENDANT ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P4 TRUE COPY OF THE IA NO. 1/2020 IN OS 129/17 ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P5 TRUE COPY OF THE PRINT OUT TAKEN FROM E-
COURT SERVICE WITH REGARD TO THE PROCEEDINGS IN OS NO. 129/17 ON THE FILES OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
O.P.(C)Nos.1146 and 1178 of 2020 :-10-:
APPENDIX OF OP(C) 1178/2020 PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.
73/2018 ON THE FILES OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM EXHIBIT P2 TRUE COPY OF THE IA NO. 1139/2018 IN O.S NO. 73/2018 ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT/2ND DEFENDANT ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM EXHIBIT P4 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PLAINTIFFS IN O.S NO. 73/2018 ON THE FILES OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM EXHIBIT P5 TRUE COPY OF THE IA NO 1/2020 IN OS 73/2018 ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM EXHIBIT P6 TRUE COPY OF THE PRINT OUT TAKEN FROM E-
COURT SERVICE WITH REGARD TO THE PROCEEDINGS IN OS NO. 73/2018 ON THE FILES OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.