Kerala High Court
Shaji Pacheriyil Devasia Alias ... vs Joy Thomas on 23 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
OP(C) NO. 252 OF 2021
AGAINST THE ORDER DATED 23.09.2020 IN I.A.NO.8/2020 IN OS
27/2020 OF ADDITIONAL SUB COURT,KOTTAYAM
PETITIONERS/ COUNTER PETITIONERS/PLAINTIFFS:
1 SHAJI PACHERIYIL DEVASIA ALIAS SHAJI P.D.,
AGED 52 YEARS,
SON OF K.M. DEVASIA, KOIPURATHU HOUSE,
AYARKUNNAM VILLAGE, KOTTAYAM DISTRICT,
PIN-686 019
2 M/S. STAR CHEMICALS,
THEKKUMKATTIL BUILDINGS,
GOOD SHEPHERD ROAD, KOTTAYAM VILLAGE,
KOTTAYAM TALUK, KOTTAYAM DISTRICT,
KOTTAYAM P.O, PIN-686 001,
REPRESENTED BY ITS PROPRIETOR-FIRST PETITIONER,
SRI. SHAJI PACHERIYIL DEVASIA ALIAS SHAJII P.D,
AGED 52 YEARS,
SON OF K.M. DEVASIA,
KOIPURATHU HOUSE, AYARKUNNAM VILLAGE,
KOTTAYAM DISTRICT, PIN-686 019
BY ADV LUKE J CHIRAYIL
RESPONDENTS/ PETITIONERS/ DEFENDANTS:
1 JOY THOMAS,
AGED ABOUT 60 YEARS,
SON OF THOMAS, HOUSE NO. 2/123,
PALLIKKAPARAMBIL HOUSE, KURICHY VILLAGE,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT,
PIN-686 532
2 JOJI JOY,
AGED 51 YEARS,
WIFE OF JOY THOMAS, HOUSE NO. 2/123,
PALLIKKAPARAMBIL HOUSE,
KURICHY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 532
3 M/S. EDEN RUBBERS,
DIVINE RUBBER BUILDING,
KURICHY OUTPOST, KURICHY VILLAGE,
O.P.(C)No.252/2021
-:2:-
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT,
PIN-686 549, REPRSENTED BY ITS PARTNERS-FIRST
AND SECOND RESPONDENTS MR. JOY THOMAS AND MRS.
JOJI JOY, HOUSE NO. 2/123,
PALLIKKAPARAMBIL HOUSE,
KURICHY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 532
4 M/S. DIVINE RUBBERS,
DIVINE RUBBER BUILDING, KURICHY OUTPOST,
KURICHY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, REPRESENTED BY ITS
PROPRIETOR, SRI. JOY THOMAS,
AGED ABOUT 60 YEARS, SON OF THOMAS,
HOUSE NO. 2/123, PALLIKKAPARAMBIL HOUSE,
KURICHY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 532
BY ADVS. SRI.SAIJO HASSAN
SRI.BENOJ C AUGUSTIN
SRI.RAFEEK. V.K.
SRI.U.M.HASSAN
SMT.P.PARVATHY
SMT.SURYA P SHAJI
SMT.AATHIRA SUNNY
SHRI.MANAS P HAMEED
SHRI.ELDHO.N.MONCY
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.252/2021
-:3:-
Dated this the 23rd day of June,2022
JUDGMENT
The learned counsel appearing for the petitioners
submits that since the suit has been transferred to the
Commercial Court, he may be granted leave to
withdraw this original petition and file a fresh petition
to challenge Ext.P6 order.
On a perusal of Ext.P6, it is seen that the order is
passed under Order XXXVIII Rule 6(2) of the Code of
Civil Procedure, 1908(in short,'Code'), whereby, the
court below has accepted the security furnished by the
respondent. An order passed under Order XXXVIII
Rule 6 of the Code is appealable under Order XLIII
Rule(1)(q) of the Code. Thus, the leave sought for by
the petitioner to withdraw the original petition and file
O.P.(C)No.252/2021
a fresh original petition cannot be granted.
Nonetheless, this original petition is dismissed,
without prejudice to the right of the petitioners to
invoke the statutory remedy as prescribed under the
Code.
Sd/-
C.S.DIAS,JUDGE
DST/23.06.22 //True copy/
P.A.To Judge
O.P.(C)No.252/2021
APPENDIX
PETITIONER EXHIBITS
OF 2020 ON THE FILES OF HON'BLE
ADDITIONAL SUBORDINATE JUDGE'S COURT,
KOTTAYAM.
EXHIBIT P2 TRUE COPY OF THE PETITION NUMBERED AS
I.A.NO. 1 OF 2020 IN O.S. NO. 27 OF
2020, ON THE FILES OF THE HONBLE
ADDITIONAL SUBORDINATE JUDGE'S COURT,
KOTTAYAM.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 17.02.2020
IN I.A. NO. 1 OF 2020 IN O.S. NO. 27 OF
2020, ON THE FILES OF THE HON'BLE
ADDITIONAL SUBORDINATE JUDGE'S COURT,
KOTTAYAM.
EXHIBIT P4 TRUE COPY OF THE PETITION NUMBERED AS
I.A. NO. 4 OF 2020 IN O.S. NO. 27 OF
2020, ON THE FILES OF THE HON'BLE
ADDITIONAL SUBORDINATE JUDGE'S COURT,
KOTTAYAM.
EXHIBIT P5 TRUE COPY OF THE FIXED DEPOSIT RECEIPT
IN FAVOUR OF THE FIRST DEFENDANT AT
FEDERAL BANK,KURICHY BRANCH FOR AN
AMOUNT OF RS. 7,00, 000/- (SEVEN LAKH
RUPEES ONLY).
EXHIBIT P6 TRUE COPY OF THE FIXED DEPOSIT RECEIPT
IN FAVOUR OF THE FIRST DEFENDENT AT
FEDERAL BANK, KURICHY BRANCH FOR AN
AMOUNT OF RS. 8,00,000/- (EIGHT LAKH
RUPEES ONLY)
EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT
DATED 17.08.2020, FILED BY THE FIRST
PLAINTIFF AGAINST EXT. P4.
O.P.(C)No.252/2021
EXHIBIT P8 TRUE COPY OF THE PETITION NUMBERED AS
IA. NO. 8 OF 2020 IN O.S NO. 27 OF 2020
ON THE FILES OF THE HON'BLE ADDITIONAL
SUBORDINATE JUDGE'S COURT, KOTTAYAM.
EXHIBIT P9 TRUE COPY OF THE FIXED DEPOSIT RECEIPT
IN FAVOUR OF THE FIRST DEFENDENT AT
FEDERAL BANK, KURICHY BRANCH FOR AN
AMOUNT OF RS. 3,30,000/- (THREE LAKH
THIRTY THOUSAND RUPEES ONLY).
EXHIBIT P10 TRUE COPY OF THE PETITION NUMBERED AS
I.A. NO. 5 02 2020 IN O.S. NO. 27 OF
2020 ON THE FILES OF THE HON'BLE
ADDITIONAL SUBORDINATE JUDGE'S COURT,
KOTTAYAM.
EXHIBIT P10 A TRUE COPY OF THE OBJECTION DATED
26.08.2020, FILED AGAINST EXT. P10 BY
THE FIRST DEFENDANT FOR HIMSELF AND ON
BEHALF OF OTHER DEFENDANTS.
EXHIBIT P11 TRUE COPY OF THE PETITION NUMBERED AS
I.A. NO. 6 OF 2020 IN O.S.NO. 27 OF
2020 ON THE FILES OF THE HON'BLE
ADDITIONAL SUBORDINATE JUDGE'S COURT,
KOTTAYAM.
EXHIBIT P11 A TRUE COPY OF THE OBJECTION DATED
11.09.2020, FILED BY THE FIRST
DEFENDANT FOR HIMSELF AND ON BEHALF OF
OTHER DEFENDANTS AGAINST EXT. P11.
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 23.09.2020
IN I.A NO. 8 OF 2020 IN O.S. NO. 27OF
2020, ON THE FILES OF THE HON'BLE
ADDITIONAL SUBORDINATE JUDGE'S COURT,
KOTTAYAM.
RESPONDENTS' EXHIBITS: NIL
