IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
OP(C) NO. 725 OF 2022
AGAINST THE ORDER DATED 25.11.2021 PASSED IN I.A.
NO.40/2021 IN OS 6/2012 OF SUBORDINATE COURT,
KARUNAGAPPALLY
PETITIONER/LEGAL HEIR OF DISEASED ORIGINAL PLAINTIFF:
ACHAMMA THOMAS, AGED 48 YEARS,
W/O.K.K.VARGHESE, KADAYIL PUTHEN VEEDU,
ERAVICHIRA NADUVIL, SOORANADU SOUTH,
PATHARAM P.O., KOLLAM, PIN - 690522.
BY ADVS.
SRI.B.G.HARINDRANATH
SRI.SANTHOSH MATHEW
SRI.KURIAN ANTONY MATHEW
RESPONDENT/COUNTER PETITIONER-DEFENDANT:
K.K. KOSHY, AGED 56 YEARS,
S/O.PODIKUNJU, KADAYIL VEEDU, PERUNGALAM MURI,
MANDROTHURUTHU VILLAGE, KOLLAM, PIN - 691502.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) No.725 of 2022
2
JUDGMENT
This Original Petition has been filed under Article 227 of the Constitution of India by the legal heir of the plaintiff in O.S.No.6/2012 on the file of Subordinate Court, Karunagappally, aggrieved by dismissal of the above petition by order dated 25.11.2021 in I.A.No.40/2021 in the above suit.
2. The crux of the matter is centered on the issue, whereby an attachment order as per Ext.P3 passed on 23.04.2011 and noting the same in the encumbrance certificate that the attachment was effected in report of the property in resurvey No.77/2015.
3. It is submitted by the learned counsel for the original petitioner that a mistake crept while communicating the attachment order and in fact the property attached was in resurvey No.75/2015. Because of the mistake in the resurvey number noted, the plaintiff, who in fact, not pressed and terminated the OP(C) No.725 of 2022 3 proceedings in O.S.No.6/2012, is in trouble. Ext.P4 report given by the learned Sub Judge would go to show that the suit was dismissed for default and at present the legal heir of the plaintiff, who is the petitioner wants to correct the error so as to lift the attachment.
4. It is relevant to note that as per Ext.P7 impugned order, the learned Sub Judge dismissed I.A.No.40/2021 to amend the plaint on the ground that the suit was dismissed for default on 12.09.2012. Hence, there was no sufficient reason to amend the plaint and to amend the schedule as stated in the petition.
5. To be on the crux of the dispute, the error in noting the attachment as regards to survey number, created all the hurdles to the petitioner and, therefore, in the interest of justice, without tracing for technicalities, the trial court ought to have allowed the application so as to address the grievance of the petitioner.
OP(C) No.725 of 2022 4 Having considered the dispute in the context of the facts discussed, I direct the learned Sub Judge, Karunagappally to give necessary information to Sub Registrar and the Village Officer concerned, stating that the survey number of the property attached is pertaining to resurvey No.75/2015 instead of 77/2015 and also inform lifting of the attachment made as per Ext.P3, in view of the dismissal of suit for non-prosecution, within a period of three days from production or receipt of copy of this judgment.
The Registry is directed to forward a copy of this judgment to the court below concerned forthwith.
Accordingly, this Original Petition is allowed.
Sd/-
A.BADHARUDEEN, JUDGE.
ww OP(C) No.725 of 2022 5 APPENDIX OF OP(C) 725/2022 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE NO.A3-11941/12 DATED 01-01-
2013 ISSUED BY THE TAHSILDAR, KUNNATHOOR TALUK TO THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE PLAINT IN O.S.6/12 DATED 31-03-2011 BEFORE THE HON'BLE SUBORDINATE COURT, KARUNAGAPPALLY. EXHIBIT P3 TRUE COPY OF THE I.A.1485/2011 DATED 23-04-2011 ALONG WITH THE ORDER FOR ATTACHMENT BEFORE JUDGEMENT. EXHIBIT P4 TRUE COPY OF THE JUDGEMENT DATED 12-09-
2012 DISMISSING THE O.S.6/12 OF THE SUBORDINATE COURT, KARUNAGAPPALLY. EXHIBIT P5 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.2662/21 DATED 29-07-2021 ISSUED BY THE SUB REGISTRAR, SOORANADU SRO REGARDING THE RESPONDENT'S PROPERTY.
EXHIBIT P6 TRUE COPY OF THE ORDER OF THE HON'BLE SUBORDINATE COURT, KARUNAGAPPALLY IN I.A.1/2020 IN O.S. 6/12 FOR LIFTING ATTACHMENT DATED 12-03-2020. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 25-11-2021 OF THE HON'BLE SUBORDINATE COURT, KARUNAGAPPALLY DISMISSING I.A 40/21 IN O.S. 6/12.