Bhagavat Singh G vs Syam A
2021 Latest Caselaw 1975 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

    TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                      OP(C).No.1992 OF 2020

AGAINST THE COMMON ORDER OF III ADDITIONAL DISTRICT COURT, KOLLAM
DATED 13-11-2020 IN I.A.NO.1 OF 2020 IN A.S 19/2020 & IN I.A.NO.1
                   OF 2020 IN A.S.NO.1 OF 2020


PETITIONER/PETITIONER/APPELLANT:

             BHAGAVAT SINGH G.,
             AGED 60 YEARS,
             S/O.LATE K.GANGADHARAN, ISWARYA, NEDUNGOLAM NOW
             RESIDING AT SAROJ GANGA, FIROZ GANDHI LANE, JETTY
             ROD, VADUTHALA P.O., CHERANALLOOR VILLAGE,
             KANAYANNOOR TALUK, ERNAKULAM - 682 023.

             BY BHAGAVAT SINGH G.(PARTY IN PERSON)

RESPONDENTS/RESPONDENTS/RESPONDENTS:

      1      SYAM A.,
             AGED 42 YEARS,
             S/O.LATE ASOKAN, R.L.SADANAM, NEDUNGOLAM P.O., MEENDU
             CHERRY, PARAVUR VILLAGE, KOLLAM TALUK, KOLLAM - 691
             334.

      2      RAKHI L.R.,
             AGED 36 YEARS, W/O.SYAM A., R.L.SADANAM, NEDUNGOLAM
             P.O., MEENDU CHERRY, PARAVUR VILLAGE, KOLLAM TALUK,
             KOLLAM - 691 334.

      3      LALITHAMBIKA G.,
             AGED 62 YEARS, D/O.LATE SAROJINI, R.L.SADANAM,
             NEDUNGOLAM P.O., NEENADU CHERRY, PARAVUR VILLAGE,
             KOLLAM TALUK, KOLLAM - 691 334.

             R2-3 BY ADV. SRI.HARISH GOPINATH

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.1992 OF 2020                2




                                JUDGMENT

A money decree was passed in O.S.No.44 of

2015 by Principal Sub Court, Kollam. Being

aggrieved by part of the decree, the defendants

in the suit filed in AS No.1 of 2020 and sought

to stay execution of decree by filing

I.A.No.1/2020. Plaintiff also filed another

appeal as AS No.19 of 2020 challenging part of

the decree and sought to attach six cents of

land belonging to third respondent in the appeal

by filing I.A.1 of 2020.

2. By virtue of common order dated

13.11.2020 passed in both applications, the

IInd Addl. District Court, Kollam dismissed

I.A.No.1 of 2020 in AS No.19 of 2020 and

allowed I.A.No.1 of 2020 in AS No.1 of 2020.

3. Being aggrieved by dismissal of

petition for attachment for judgment, as well

as the order staying execution proceedings, the

aggrieved plaintiff filed this O.P invoking

Article 227 of the Constitution of India.

4. I heard the learned counsel for the

petitioner as well as the respondents.

5. I cannot support the reason assigned by

the lower appellate court for refusing to order

conditional attachment of the property. The

appellate court ordered stay of execution upon

the condition of depositing half of the decree

amount within one month. It is of the view that

once the aforesaid amount is deposited, there

was no need for ordering attachment before

judgment. This view cannot be supported at all.

6. The plaintiff in the suit is aggrieved

by the dismissal of suit as regards part of the

plaint amount. If there is likelihood of decree

being reversed, the plaintiff would be put to

irreparable loss unless there is some provision

made for securing the amount claimed in the

plaint. This could be ensured only by ordering

conditional attachment as requested by the

plaintiff.

7. Whether I.A.No.1 of 2020 filed in AS

No.19 of 2020 could be allowed on merits is a

different question. According to the learned

counsel for the defendant, there is no ground

for ordering an attachment and he has filed

detailed counter also. I am not examining the

contentions of parties on merits. But I am

persuaded to hold that the reason assigned in

the impugned order for refusing to order

conditional attachment does not merit

acceptance.

8. I cannot also support the view taken by

the appellate court that stay could follow on

deposit of half of the amount of decreetal

amount without giving any further directions as

to furnishing of security for the rest of the

amount. Therefore, the order in I.A. 1 of 2020

also in AS No.19 of 2020 requires to be set

aside.

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

setting aside the common order dated 13.11.2020

passed in Appeal Nos. 1 of 2020 and 19 of 2020.

The appellate court is directed to decide

I.A.No.1 of 2020 in As No.1 of 2020 and

I.A.No.1 of 2020 in AS.No.19 of 2020 in

accordance with law after hearing the parties

and giving them opportunity to substantiate

their case. It is directed that the

applications aforesaid shall be disposed of

within a period of one month from the date of

receipt of a certified copy of this judgment.

Sd/-

T.V.ANILKUMAR, JUDGE

pm

APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 COPY OF A.S.NO.19/2020 PENDING ON THE FILE OF 3RD ADDITIONAL DISTRICT COURT, KOLLAM DATED 21/01/2020.

EXHIBIT P2 COPY OF I.A.NO.1/2020 IN A.S.NO.19/2020 PENDING IN THE FILE OF 3RD ADDITIONAL DISTRICT COURT, KOLLAM DATED 21/01/2020.

EXHIBIT P3 COPY OF A.S.NO.1/2020 PENDING ON THE FILE OF 3RD ADDITIONAL DISTRICT COURT, KOLLAM DATED 01/01/2020.

EXHIBIT P4 COPY OF I.A.NO.1/2020 IN A.S.NO.1/2020 PENDING IN THE FILE OF 3RD ADDITIONAL DISTRICT COURT, KOLLAM DATED 01/02/2020.

EXHIBIT P5 COPY OF THE OBJECTION DATED 22/2/2020 FILED BY THE RESPONDENTS AGAINST EXT.P2.

EXHIBIT P6 COPY OF THE COMMON ORDER IN EXTS.P-2&P-4 DATED 13/11/2020 OF THE LOWER APPELLATE COURT.

EXHIBIT P7 COPY OF THE OBJECTION DATED 26/10/2020 FILED BY THE PETITIONER AGAINST EXT.P4.

EXHIBIT P8 COPY OF E.P.NO.13 OF 2020 DATED 27/1/2020 FILED BY THE PETITIONER.

EXHIBIT P9 COPY OF THE MEMO FILED BY THE RESPONDENT AFTER EFFECTING DEPOSIT DATED 11/12/2020.

   RESPONDENTS' EXHIBITS:     NIL