Achamma Thomas vs K.K. Koshy
2022 Latest Caselaw 7691 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
  TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
                     OP(C) NO. 725 OF 2022

    AGAINST THE ORDER DATED 25.11.2021 PASSED IN I.A.
      NO.40/2021 IN OS 6/2012 OF SUBORDINATE COURT,
                      KARUNAGAPPALLY
PETITIONER/LEGAL HEIR OF DISEASED ORIGINAL PLAINTIFF:

            ACHAMMA THOMAS, AGED 48 YEARS,
            W/O.K.K.VARGHESE, KADAYIL PUTHEN VEEDU,
            ERAVICHIRA NADUVIL, SOORANADU SOUTH,
            PATHARAM P.O., KOLLAM, PIN - 690522.

            BY ADVS.
            SRI.B.G.HARINDRANATH
            SRI.SANTHOSH MATHEW
            SRI.KURIAN ANTONY MATHEW

RESPONDENT/COUNTER PETITIONER-DEFENDANT:

            K.K. KOSHY, AGED 56 YEARS,
            S/O.PODIKUNJU, KADAYIL VEEDU, PERUNGALAM MURI,
            MANDROTHURUTHU VILLAGE, KOLLAM, PIN - 691502.

     THIS    OP   (CIVIL)    HAVING   COME   UP    FOR    ADMISSION   ON
28.06.2022,    THE   COURT    ON   THE   SAME     DAY    DELIVERED    THE
FOLLOWING:
 OP(C) No.725 of 2022
                               2

                            JUDGMENT

This Original Petition has been filed under

Article 227 of the Constitution of India by the

legal heir of the plaintiff in O.S.No.6/2012 on

the file of Subordinate Court, Karunagappally,

aggrieved by dismissal of the above petition by

order dated 25.11.2021 in I.A.No.40/2021 in the

above suit.

2. The crux of the matter is centered on

the issue, whereby an attachment order as per

Ext.P3 passed on 23.04.2011 and noting the same

in the encumbrance certificate that the

attachment was effected in report of the

property in resurvey No.77/2015.

3. It is submitted by the learned counsel

for the original petitioner that a mistake

crept while communicating the attachment order

and in fact the property attached was in

resurvey No.75/2015. Because of the mistake in

the resurvey number noted, the plaintiff, who

in fact, not pressed and terminated the OP(C) No.725 of 2022

proceedings in O.S.No.6/2012, is in trouble.

Ext.P4 report given by the learned Sub Judge

would go to show that the suit was dismissed

for default and at present the legal heir of

the plaintiff, who is the petitioner wants to

correct the error so as to lift the attachment.

4. It is relevant to note that as per

Ext.P7 impugned order, the learned Sub Judge

dismissed I.A.No.40/2021 to amend the plaint on

the ground that the suit was dismissed for

default on 12.09.2012. Hence, there was no

sufficient reason to amend the plaint and to

amend the schedule as stated in the petition.

5. To be on the crux of the dispute, the

error in noting the attachment as regards to

survey number, created all the hurdles to the

petitioner and, therefore, in the interest of

justice, without tracing for technicalities,

the trial court ought to have allowed the

application so as to address the grievance of

the petitioner.

OP(C) No.725 of 2022

Having considered the dispute in the

context of the facts discussed, I direct the

learned Sub Judge, Karunagappally to give

necessary information to Sub Registrar and the

Village Officer concerned, stating that the

survey number of the property attached is

pertaining to resurvey No.75/2015 instead of

77/2015 and also inform lifting of the

attachment made as per Ext.P3, in view of the

dismissal of suit for non-prosecution, within a

period of three days from production or receipt

of copy of this judgment.

The Registry is directed to forward a copy

of this judgment to the court below concerned

forthwith.

Accordingly, this Original Petition is

allowed.

Sd/-

A.BADHARUDEEN, JUDGE.

ww OP(C) No.725 of 2022

APPENDIX OF OP(C) 725/2022

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE NO.A3-11941/12 DATED 01-01-

2013 ISSUED BY THE TAHSILDAR, KUNNATHOOR TALUK TO THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE PLAINT IN O.S.6/12 DATED 31-03-2011 BEFORE THE HON'BLE SUBORDINATE COURT, KARUNAGAPPALLY.

EXHIBIT P3 TRUE COPY OF THE I.A.1485/2011 DATED 23-04-2011 ALONG WITH THE ORDER FOR ATTACHMENT BEFORE JUDGEMENT.

EXHIBIT P4 TRUE COPY OF THE JUDGEMENT DATED 12-09-

2012 DISMISSING THE O.S.6/12 OF THE SUBORDINATE COURT, KARUNAGAPPALLY.

EXHIBIT P5 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.2662/21 DATED 29-07-2021 ISSUED BY THE SUB REGISTRAR, SOORANADU SRO REGARDING THE RESPONDENT'S PROPERTY.

EXHIBIT P6 TRUE COPY OF THE ORDER OF THE HON'BLE SUBORDINATE COURT, KARUNAGAPPALLY IN I.A.1/2020 IN O.S. 6/12 FOR LIFTING ATTACHMENT DATED 12-03-2020.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 25-11-2021 OF THE HON'BLE SUBORDINATE COURT, KARUNAGAPPALLY DISMISSING I.A 40/21 IN O.S. 6/12.