Joji Mathew vs Joji Mathew
2021 Latest Caselaw 1118 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.1500 OF 2020

 AGAINST THE ORDER/JUDGMENT IN OS 40/2020 DATED 25-09-2020 OF SUB
                        COURT, OTTAPPALAM


PETITIONER/RESPONDENT/DEFENDANT:

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

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

RESPONDENT/PETITIONER/PLAINTIFF:

             KUNJU MOIDEEN
             AGED 57 YEARS
             S/O. KALATHI VETTIL MUHAMMED,
             VALLAPUZHA P. O.,
             PATTAMBI TALUK,-679 336.

             R1 BY ADV. SRI.R.SREEHARI

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12.01.2021, ALONG
WITH OP(C).1509/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(C).No.1500 OF 2020           2



                           JUDGMENT

Dated this the 12th day of January 2021

Petitioner in this O.P filed under Article 227 of the

Constitution of India is be sole defendant in O.S No.40 of 2020 on

the file of Sub Court, Ottappalam.

2. He challenges Ext.P6 order dated 25.09.2020 by

which the conditional order of attachment before judgment passed

by the court was confirmed. A connected matter arising in O.S

24/2020 in which parties are the same, was already disposed of

today by this Court in O.P(Civil) No.1509/2020 . After hearing

parties, I am of the opinion that identical view has to be taken in

this matter also.

3. The suit claim in O.S 40/2020 also extends to an

amount of Rs. 50,00,000/- with interest etc. Altogether six items

of properties were totally attached invoking Order XXXVIII Rule 5

of the C.P.C and the court below accepting the case of plaintiff in

entirety ordered attachment of all the items in the light of the fair

value there of as if such an order was necessary to satisfy the

decree. The serious challenge raised in this matter at the instance

of counsel for the petitioner is that, it was quite unnecessary to

have ordered attachment of all the six items had the fair value of

the property been appreciated in a proper perspective. On the

other hand, the learned Counsel for the plaintiff respondent sought

to sustain the order contending that the fair value was properly

accepted by the Court below.

4. In the light of the connected O.P(Civil) No.

1509/2020 being allowed and the impugned order therein quashed,

I am of the opinion that, this matter shall also be simultaneously

decided along with O.S No. 24/2020 pending before the same

Court.

5. The impugned order dated 25.9.2020 is set aside,

and the Court below is directed to consider whether attachment of

all the items is necessary to satisfy the decree and shall keep in

mind while deciding I.A. No. 7/2020, the principles underlying

Order XXXVIII Rule 5 that only so much portion of properties as is

necessary to satisfy the decree alone is liable to be attached under

law.

In the result, the O.P (Civil) is allowed and the

impugned order is set aside. It is made clear that the order of

attachment shall however continue to be in force until I.A.

No. 7/2020 is decided on merits. It goes without saying that,

parties on either side shall be given sufficient opportunities to

substantiate their contentions.

Sd/-

T.V.ANILKUMAR JUDGE SMF/12.01

APPENDIX OF OP(C) 1500/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.40 OF 2020 DATED 27.05.2020 FILED BEFORE THE HON'BLE 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 HON'BLE SUB COURT, OTTAPALAM.

EXHIBIT P4 TRUE COPY OF THE INTERLOCUTORY APPLICATION NO.7 OF 2020 DATED 20.08.2020 FILED BEFORE THE HON'BLE SUB COURT, OTTAPALAM.

EXHIBIT P5 TRUE COPY OF THE OBJECTION IN INTERLOCUTORY APPLICATION NO.7 OF 2020 DATED 07.09.2020 FILED BEFORE THE HON'BLE SUB COURT, OTTAPALAM.

EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A.NO.7 OF 2020 IN O.S.NO.40 OF 2020 DATED 25.09.2020 ISSUED BY THE HON'BLE SUB COURT, OTTAPALAM.

//TRUE COPY// P A TO JUDGE