Kerala High Court
K. J. Antony vs Shilpa Josey on 5 August, 2025
2025:KER:58548
OP(C) NO. 1624 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K. NATARAJAN
TUESDAY, THE 5TH DAY OF AUGUST 2025 / 14TH SRAVANA, 1947
OP(C) NO. 1624 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 12.06.2025 IN OS NO.73 OF 2024
OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL
COURT,KOCHI
PETITIONER/S:
K. J. ANTONY
AGED 51 YEARS
KADAMPARAMBIL HOUSE, 20/946, PALLURUTHY, KOCHI, PIN -
682006
BY ADVS.
SHRI.N.RATHEESH
SMT.SUMA RATHEESH
SHRI.SHANKAR RETHEESH
SHRI.ABOOBACKER SIDDIQUE BIN SHERIF
SHRI.MUHAMMED AJMAL
RESPONDENT/S:
1 SHILPA JOSEY
KADAMPARAMBIL HOUSE, NOW RESIDING AT GOD'S OWN VILLA, NEAR
JACOB APARTMENT, ST. LAWRENCE CHURCH ROAD, PALLURUTHY,
COCHIN, PIN - 682006
2 CATHERINE JOSEY
REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SHILPA
JOSEY, KADAMPARAMBIL HOUSE, NOW RESIDING AT GOD'S OWN
VILLA, NEAR JACOB APARTMENT, ST. LAWRENCE CHURCH ROAD,
2025:KER:58548
OP(C) NO. 1624 OF 2025
2
PALLURUTHY, COCHIN, PIN - 682006
3 RYAN JOSEY
REPRESENTED BY THE MOTHER AND NATURAL GUARDIAN SHILPA
JOSEY, KADAMPARAMBIL HOUSE, NOW RESIDING AT GOD'S OWN
VILLA, NEAR JACOB APARTMENT, ST. LAWRENCE CHURCH ROAD,
PALLURUTHY, COCHIN, PIN - 682006
BY ADVS.
SHRI.P.SATHISAN
SHRI.SHIBU B.S
SHRI.BIJU P.PAUL
SMT.TEZNY A.K.
SHRI.ALVIN JEWEL S.S.
SMT.VIDHYA T.U.
SMT.ANTIJA JAMES
SMT.SWALIHA SELMI T.R.
SMT.LEENA VARGHESE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:58548
OP(C) NO. 1624 OF 2025
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JUDGMENT
(Dated this the 05th day of August, 2025) This original petition has been filed by the petitioner for setting aside the order in I.A No.2/2024 in OS No. 73/2024 pending on the files of the Sub Court, Kochi.
2.Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondents.
3.The case of the petitioner is that the petitioner filed a suit against the respondents for realization of money for Rs.16,23,762/- together with 12% interest. The defendant also appeared and filed a written statement. During the pendency of the suit, the plaintiff filed an interlocutory application under Order 38 Rule 5 of the Civil Procedure Code for attaching the property of the defendant, which came to be dismissed. Hence, the petitioner approached this court.
4. The learned counsel for the petitioner has contended that the trial court has committed an error in dismissing the application, believing the respondents' objection statement, by disbelieving the contention of the petitioner regarding the repayment of the loan 2025:KER:58548 OP(C) NO. 1624 OF 2025 4 amount of Rs. 16,23,762/-.
5.The defendant is attempting to alienate the property by seeking permission from the Family Court by filing the G(OP) case, to defeat the rights of the petitioner in the future for enjoying the fruits of the decree. Therefore, the order under challenge is liable to be set aside, and the petitioner seeks an order for attachment of the defendants' property, as prayed for in the interlocutory application.
6.Per contra, the learned counsel for the respondents seriously objects to the petition, mainly on the ground that the alleged agreement was executed on 27.05.2015 and on the same day, the respondent's husband and his sister also executed a relinquishment deed, where it is sated that Rs.16,23,762/- have been paid by the petitioner/plaintiff for relinquishing the right over the property mentioned in the document and his sister also received Rs.2,95,229/- and relinquished the right. Subsequently, as per Ext.P8, the husband of the 1st respondent and his mother executed a registered relinquishment deed on 27.11.2020. The sister also 2025:KER:58548 OP(C) NO. 1624 OF 2025 5 executed a separate relinquishment deed on the plaintiff, which clearly reveals that the amount paid by the petitioner was only for relinquishing the rights of the respondent's husband and not as sale consideration. Therefore, there is no prima facie material to place on record to justify the attachment of the defendant's property. However, it is contended that the defendants have been left with no means or source of income for their survival. Therefore, the 1 st respondent filed a petition seeking permission from the court to sell the property for the purpose of survival, education, and medical facilities.
7. Having heard the arguments and perused the records.
8.It is not in dispute that the petitioner filed a suit for realization of money of Rs.16,23,762/-. However, Ext.P7 produced by the defendants reveals that, for the said amount, the husband of the 1st respondent, along with his sister-in-law, agreed to execute a relinquishment deed in favour of the petitioner on the same day i,e., on 27.05.2015. Subsequently, in the year 2020, the husband of the respondent along with his mother, executed a registered relinquishment deed in favour of the plaintiff and it is shown that 2025:KER:58548 OP(C) NO. 1624 OF 2025 6 an amount of Rs.12,06,000/- has been received.
9.It is also submitted by the learned counsel for the respondents that the sister of the 1st respondent's husband has also executed a separate registered deed in favour of the plaintiff for relinquishing the right over the property owned by the petitioner, deceased brother and deceased father.
10.The learned counsel for the petitioner has contended that it is a different transaction and has nothing to do with this transaction. The facts presented by the plaintiff/petitioner, along with the disputed issues, are required to be adjudicated by the trial court by framing appropriate issues and by permitting both parties to lead evidence However, in order to satisfy the petitioner's claim for attachment, the petitioner must be able to show that there is a loan agreement executed by the 1st defendant along with her deceased husband, acknowledging the receipt of Rs. 16,23,762/- for the purpose of constructing the house. Ext.P3 document bears the handwriting of the deceased husband of the 1st respondent. Whether this written document was executed by the husband of the 1st respondent or by the plaintiff is to be decided by the court in 2025:KER:58548 OP(C) NO. 1624 OF 2025 7 the trial, while dealing with the merits of the case. However, it is a definite case for the defendants to alienate the property for their survival and filed an application seeking the court's permission for alienation of the said property.
11.Here, the suit document of the petitioner shows that these documents were also executed by the 1st defendant along with her husband, showing that the 1st defendant and her husband signed the documents for borrowing a loan to build the house. Now, that property is about to be alienated by the defendant Nos 1 to 3. Therefore, it is necessary to protect the petitioner's interest, otherwise, if the property is allowed to be sold at this stage, it is very difficult for the plaintiff in the future to enjoy the fruits of the decree and to realize money. Therefore, to protect the petitioner's interest, it is necessary to attach the property of the defendant under Order 38 Rule 5 of CPC.
12.However, at this stage, it is also should not be forgotten that the husband of the 1st defendant passed away long ago due to some serious ailment. Defendants Nos.2 and 3 are the minor children, and no other earning members in the family, therefore, 2025:KER:58548 OP(C) NO. 1624 OF 2025 8 they need to sell the property for survival.
13.On the other hand, it is also the duty of the court to protect the plaintiff's right to recover the money in case he succeeds in the suit. On the other hand, the respondents need to sell the property for survival, and the petitioner is pressing for the defendants also to execute a security for an amount of Rs.16, 23,762/- before the said court and they are permit to alienate the property for the purpose of their survival either for education of the children or their livelihood. Therefore, in the interest of justice, the defendants shall be required to furnish security before the trial court.
14.Accordingly, I am of the view that the order under challenge required to be set aside and modified.
15.In the result, the original petition is allowed in part. The order under challenge is hereby set aside. The defendant is directed to furnish a security for Rs.16,23,762/- before the trial court after alienation of the said property. The defendant shall deposit Rs.16,23,762/- before the trial court within ten days after alienating the property or getting an advance amount from the proposed purchaser, and if any such amount is deposited, the same 2025:KER:58548 OP(C) NO. 1624 OF 2025 9 shall be deposited in a Fixed deposit in the name of the Court for future realization. All the contentions of the parties are left open.
Sd/-
K. NATARAJAN JUDGE SJ 2025:KER:58548 OP(C) NO. 1624 OF 2025 10 APPENDIX OF OP(C) 1624/2025 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PLAINT DATED 07.12.2024 IN O.S. NO. 73 OF 2024 ON THE FILE OF THE HON'BLE SUB COURT, KOCHI.
Exhibit P2 TRUE COPY OF SAID I.A. NO.2/2024 FILED UNDER ORDER 38 RULE 5 AND SECTION 151 OF THE CODE OF CIVIL PROCEDURE FOR A CONDITIONAL ORDER OF ATTACHMENT SUBMITTED IN EXHIBIT P1 .
Exhibit P3 THE TRUE COPY OF THE AGREEMENT DATED 27.05.2015 ENTERED INTO BETWEEN 1ST RESPONDENT AND HER LATE HUSBAND JOSEY WITH THE PETITIONER.
Exhibit P3 (a) THE ENGLISH TRANSLATION OF EXHIBIT P3. Exhibit P4 THE TRUE COPY OF THE LAWYER NOTICE DATED 07.12.2024.
Exhibit P5 THE TRUE COPY OF THE COUNTER AFFIDAVIT DATED 19.12.2024 SUBMITTED BY THE RESPONDENTS AGAINST EXHIBIT P2 .
Exhibit P6 THE TRUE COPY OF CERTIFIED COPY OF THE ORDER DATED 12.06.2025 IN I.A. NO. 2 OF 2025 IN O.S. NO.73 OF 2024 ON THE FILE OF THE HON'BLE SUB COURT, KOCHI.
Exhibit P7 THE TRUE COPY OF THE AGREEMENT ENTERED INTO A STAMP PAPER DATED 27.05.2015 PRODUCED BY THE RESPONDENTS BEFORE THE TRIAL COURT WHICH WAS PRODUCED AND MARKED AS EXHIBIT B2 MENTIONED IN EXHIBIT P6 ORDER.
Exhibit P8 TRUE COPY OF THE DOCUMENT MARKED AS EXHIBIT B4 IN EXHIBIT P6 ORDER.