Joji Mathew vs Kunju Moideeen
2021 Latest Caselaw 1099 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                 THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

       TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942

                          OP(C).No.1509 OF 2020

      AGAINST THE ORDER DATED 25.09.2020 IN I.A.NO.9 OF 2020 IN OS
              24/2020 ISSUED BY THE SUB COURT, OTTAPPALAM


PETITIONER:

              JOJI MATHEW,
              AGED 46 YEARS,
              S/O. VARGHESE MATHEW CHAKKUPURAKKAL, CHAKKUPURAKKAL
              VEETTIL, NEMINI PANTHALLUR HILLS, NENMENI VILLAGE,
              PERINTHALMANNA TALUK, MALAPPURAM DISTRICT 676 521.

              BY ADVS.
              SRI.K.S.BHARATHAN
              SRI.ABEL ANTONY
              SRI.CHRISTINE MATHEW

RESPONDENT:

              KUNJU MOIDEEEN,
              AGED 57 YEARS,
              S/O. KALATHIL VETTIL MUHAMMED, VALLAPUZHA, P.O.
              PATTAMBI TALUK.

              R1 BY ADV. SRI.R.SREEHARI

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12.01.2021,   THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.1509 OF 2020                  2

                                JUDGMENT

Petitioner in this OP filed under Article

227 of the Constitution of India is the

defendant in O.S.No.24 of 2020 on the file of

Sub Court, Ottapalam.

2. Plaintiff/respondent sought attachment

of two items of properties before judgment

scheduled in I.A.No.9 of 2020 filed under Order

38 Rule 5 of the CPC. The petitioner herein

after having put in appearance filed serious

objection seeking to vacate the conditional

order of attachment in force. The court below

after hearing parties passed Ext.P6 dated

25.9.2020 order confirming conditional

attachment and granted an opportunity to the

petitioner/defendant to furnish security.

3. The suit claim is for an amount of Rs.50

lakh with interest etc. The learned counsel for

the petitioner urges that the value of building

situated in item No.1 was not taken notice of by

the court below and this failure has caused the

impugned order to be vitiated. His submission in

short is to the effect that the items 1 and 2

together are worth Rs.6 Crores and there was no

need for the court below to have ordered

attachment of both items together.

4. I heard the learned counsel for the

respondent also, who sought to sustain the

impugned order. I find from para 9 of the

impugned order that the court below has taken a

view that Ext.B1 abstract issued by Chartered

Accountant-cum Engineer, who is an approved

valuer is not relevant in as much as he was not

a public authority. I find my way difficult to

accept this argument since Ext.B1 is also one of

the materials to have been taken into

consideration in estimating the value of the

entire assets of the petitioner/defendant. The

court below has however rightly estimated the

value of land accepting the fare value

certificate produced before the court below.

5. My attention was drawn to Order 38 Rule

5 which provides that what is liable to be

attached under that provision is not the entire

properties as sought by the applicant but only

such portion thereof as may be sufficient to

satisfy the decree. I have my own doubt whether

the impugned order was passed after

comprehending the true spirit of the provision.

Accepting the submission made by the learned

counsel for the petitioner that the value of

building also ought to have been taken into

consideration, I am of opinion that the matter

requires to be examined afresh by the court

below. For this reason, I find my way difficult

to sustain the impugned order dated 25.9.2020.

In the result, this OP(C) is allowed setting

aside the impugned order in I.A.9 of 2020 in

O.S.No.24 of 2020 and there shall be the

direction to the court below to decide the

I.A.No.9 of 2020 in accordance with law after

hearing both parties and taking into account the

value of the building estimated by the expert

Engineer. I make it clear that to what extent

value of building as stated in Ext.B1 could be

accepted is over again another disputed matter

which ought to be decided by the court below in

accordance with law after hearing both sides.

The impugned order of attachment passed by the

court below will continue to be in force until

the matter is decided on merits.

Sd/-

T.V.ANILKUMAR, JUDGE

pm

APPENDIX OF OP(C) 1509/2020

PETITIONER'S EXHIBITS:

OF 2020 DATED 02.03.2020 FILED BEFORE THE HONBLE SUB COURT, OTTAPALAM.

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 19.09.2020.

EXHIBIT P3 TRUE COPY OF THE ORDER IN I.A. NO. 1 OF 2020 IN O.S. NO. 40 OF 2020 DATED 29.07.2020 PASSED BY THE HONBLE SUB COURT, OTTAPALAM.

EXHIBIT P4 TRUE COPY OF THE INTERLOCUTORY APPLICATION NO. 9 OF 2020 DATED 20.08.2020 FILED BEFORE THE HONBLE SUB COURT, OTTAPALAM.

EXHIBIT P5 TRUE COPY OF THE OBJECTIONS IN INTERLOCUTORY APPLICATION NO. 9 OF 2020 DATED 07.09.2020 FILED BEFORE THE HONBLE SUB COURT, OTTAPALAM.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 25.09.2020 ISSUED BY THE HONBLE SUB COURT, OTTAPALAM.

 RESPONDENT'S
 EXHIBITS:                  NIL