Kerala High Court
Aby K.Jacob vs Chacko P.Varghese on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
FAO NO. 105 OF 2020
AGAINST THE ORDER DATED 08/10/2020 IN IA 1/2020 IN OS 17/2020 OF
SUB COURT, THIRUVALLA
APPELLANTS/PETITIONERS/PLAINTIFFS:
1 ABY K.JACOB, AGED 51,EX-GULF AND BUSINESS, S/O.LATE
K.C.ABRAHAM, KARIMALATHU HOUSE, MADUMTHUMBHAGOM,
KEEZHIKKARA MURI, PURAMATTOM VILLAGE, MALLAPPALLY
TALUK, PATHANAMTHITTA DISTRICT.
2 MERINA K.ABY, AGED 48, HOMEMAKER AND STAGE CARRIAGE
OPERATOR, W/O.ABY K.JACOB, KARIMALATHU HOUSE,
MADUMTHUMBHAGOM, KEEZHIKKARA MURI, PURAMATTOM VILLAGE,
MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.CHERIAN GEE VARGHESE
SRI.P.HARIDAS
SRI.BIJU HARIHARAN
SRI.R.B.BALACHANDRAN
SRI.RENJI GEORGE CHERIAN
SRI.P.C.SHIJIN
SRI.RISHIKESH HARIDAS
RESPONDENTS/RESPONDENTS/DEFENDANTS
1 CHACKO P.VARGHESE, AGED ABOUT 52, BUSINESS, S/O.LATE
VARGHESE, KULATHUMURIYIL HOUSE, ERAVIPEROOR P.O.,
ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA
TALUK, NOW RESIDING AT CHERUKARA HOUSE, CHUMATHRA P.O.,
CHUMATHRA MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK,
PATHANAMTHITTA DISTRICT-689 103.
2 SHOBHANA KOSHY,
AGED ABOUT 60, HOMEMAKER, W/O.1ST DEFENDANT, RESIDING
AT KULATHUMURIYIL HOUSE, ERAVIPEROOR P.O., ERAVIPEROOR
MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, NOW
RESIDING AT CHERUKARA HOUSE, CHUMATHRA P.O., CHUMATHRA
MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK,
PATHANAMTHITTA DISTRICT-689 103.
3 SRUTHI SUBASH,
AGED ABOUT 30, W/O.SUBASH, MELETHU PUTHENVEEDU,
KAVIYOOR P.O., PADINJATTUMCHERRY MURI, KAVIYOOR
VILLAGE, THIRUVALLA TALUK-689 103.
BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
20.10.2021, ALONG WITH FAO.106/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
[FAO Nos.105/2020, 106/2020] 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
FAO NO. 106 OF 2020
AGAINST THE ORDER DATED 08/10/2020 IN IA 2/2020 IN OS 17/2020 OF
SUB COURT, THIRUVALLA
APPELLANTS/PETITIONERS/PLAINTIFFS
1 ABY K.JACOB, AGED 51, EX-GULF AND BUSINESS, S/O LATE
K.C.ABRAHAM, KARIMALATHU HOUSE, MADUMTHUMBHAGOM,
THEKKEKARA MURI, PURAMATTOM VILLAGE, MALLAPPALLY TALUK,
PATHANAMTHITTA DISTRICT
2 MERINA K ABY, AGED 48, HOMEMAKER AND STAGE CARRIAGE
OPERATOR, W/O ABY K .JACOB, KARIMALATHU HOUSE,
MADUMTHUMBHAGOM, THEKKEKARA MURI, PURAMATTOM VILLAGE,
MALLAPPALLY TALUK,
PATHANAMTHITTA DISTRICT
BY ADVS.
CHERIAN GEE VARGHESE
SRI.P.HARIDAS
SRI.BIJU HARIHARAN
SRI.R.B.BALACHANDRAN
SRI.RENJI GEORGE CHERIAN
SRI.P.C.SHIJIN
SRI.RISHIKESH HARIDAS
RESPONDENTS/RESPONDENTS/DEFENDANTS
1 CHACKO P.VARGHESE, AGED ABOUT 52,
BUSINESS, S/O LATE VARGHSE, KULATHUMURIYIL HOUSE,
ERAVIPEROOR P.O., ERAVIPEROOR MURI, ERAVIPEROOR
VILLAGE, THIRUVALLA TALUK, NOW RESIDING AT CHERUKARA
HOUSE, CHUMATHRA P.O., CHUMATHRA MURI, KUTTAPUZHA
VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRIT-689
103.
2 SHOBHANA KOSHY,
AGED ABOUT 60,
HOMEMAKER, W/O 1ST DEFENDANT, RESIDING AT
[FAO Nos.105/2020, 106/2020] 3
KULATHUMURIYIL HOUSE, ERAVIPEROOR P.O, ERAVIPEROOR
MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, NOW
RESIDING AT CHERUKARA HOUSE, CHUMATHRA P.O.CHUMATHRA
MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK,
PATHANAMTHITTA DISTRICT-689 103.
3 SRUTHI SUBASH,
AGED ABOUT 30,
W/O SUBASH, MELETHU PUTHENVEEDU, KAVIYOOR
P.O.PADINJATTUMCHERRY MURI, KAVIYOOR VILLAGE,
THIRUVALLA TALUK-689 103.
R1 BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
20.10.2021, ALONG WITH FAO.105/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
[FAO Nos.105/2020, 106/2020] 4
JUDGMENT
Two applications were maintained in I.A.No.1/2020
and 2/2020 in O.S.No.17/2020 by the plaintiffs for
attachment before judgment and for temporary
injunction. Both the applications were dismissed by
the trial court, against which the
plaintiffs/petitioners came up.
2. The suit is one for recovery of money based on
a cheque, which comes to Rs.30,37,172/-. The cheque
was issued under a settlement dated 30/04/2020. The
original cheque was produced. What is raised against
the said applications is the bar of limitation and
also disputing the due execution.
3. In the instant case, the original of the
cheque was produced, which contains a signature as
that of the drawer. Admittedly, it was drawn from
the account maintained by the first defendant. Then
it is a matter of evidence and when there is prima
facie evidence in support of the claim of plaintiff
coupled with any of the grounds enumerated under
Order XXXVIII C.P.C., the court is not expected to
conduct a roving enquiry causing prejudice to the
parties, except when there is a claim petition, which
has to be disposed of in accordance with the mandate
under Order XXI Rule 58 C.P.C.. Hence, the dismissal
of attachment application cannot be sustained. The
same will stand set aside restoring the attachment
before judgment over the property scheduled. It is
not at all necessary to pass any injunction order
under Order XXXIX C.P.C. Hence, the dismissal of
the other application will stand confirmed.
In the result, F.A.O. No.106/2020 will stand
allowed and F.A.O.No.105/2020 will stand dismissed
accordingly. The trial court shall expedite the
disposal of the suit within six months from the date
of receipt of a copy of this judgment.
Sd/-
P.SOMARAJAN
JUDGE
msp
