Kerala High Court
Musthafa vs Narayanan on 16 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA,
1943
OP(C) NO. 2298 OF 2021
CHALLENGING THE ORDER DATED 13.10.2021 IN IA 07/2021
IN OS 38/2021 AND ORDER DATED 03.09.2021 IN IA 02/2021 IN
OS 38/2021 PASSED BY THE SUB COURT OTTAPALAM
PETITIONERS/PETITIONERS/PLAINTIFFS:
1 MUSTHAFA, AGED 54 YEARS,
S/O.MUHAMMEDUNNI, CHERUMKUZHIYIL VEEDU,
PATTAMBI TALUK, PALAKKAD DISTRICT.
2 MAJEED HAIDER, AGED 49 YEARS,
S/O.HAIDER, VAZHAYIL VEEDU, IRIMBALIYAM AMSOM,
VENDALLUR DESOM, IRIMBALIYAM VILLAGE,
TIRUR TALUK, MALAPPURAM DISTRICT.
3 MUHAMMED SAJID, AGED 39 YEARS,
S/O.MAJEED, PARAPPIL VEEDU, KATTIPPARUTHI AMSOM,
KOLAMANGALAM DESOM, VALANCHERY P.O.,
VALANCHERY VILLAGE, TIRUR TALUK,
MALAPPURAM DISTRICT-676552.
4 SHANAF ABDUL KHADAR, AGED 32 YEARS,
S/O.ABDUL KHADAR, KUTTIPALA AMSOM,
SUKAPURAM DESOM, SUKAPURAM PO,
VATTAMKULAM VILLAGE, PONNANI TALUK,
MALAPPURAM DISTRICT-679576.
5 KABEER, AGED 33 YEARS, S/O.HAMSA,
THAZATHETHIL VEEDU, KOLOLOMBA AMSOM,
AYILAKKADU DESOM, AYILAKKAD PO, EDAPPAL VILLAGE,
PONNANI TALUK, MALAPPURAM DISTRICT-679576.
6 SHAHEER, AGED 32 YEARS, S/O.KOYA,
THERAYIL VEEDU, ELAKKUNNAPUZHA VILLAGE,
ELAKUNNAPUZHA DESOM, MALIPPURAM P.O.,
KOCHI TALUK, ERNAKULAM DISTRICT-682511.
O.P.(C).No.2298 of 2021
2
7 MUHAMMED ABDURAHIMAN, AGED 54 YEARS,
S/O.SYEDALAVI,
VADAKKINEZHI PADINJARAKATH VEEDU,
KUTTIPURAM AMSOM, KUTTIPURAM VILLAGE,
PERASANNUR DESOM, PERASANNUR PO, TIRUR TALUK,
MALAPPURAM DISTRICT-679571.
ALL THE PETITIONERS ARE REPRESENTED BY THEIR
POWER OF ATTORNEY HOLDER,
MR.MOHAMED SHAFI THOZHUTHINGAL, AGED 47 YEARS,
S/O.KUNHI BAVA @ KUNHI MARAKKAR, KOLALAMBA AMSOM,
POOKKARATHARA DESOM, PONNANI TALUK,
MALAPPURAM DISTRICT.
BY ADVS.
JAMSHEED HAFIZ
K.K.NESNA
RESPONDENT/RESPONDENT/DEFENDANT:
NARAYANAN, AGED 55 YEARS,
S/O.KUNCHAN, KANNAMPARAMBIL HOUSE,
MARAKKARA AMSOM DESOM, MARAKKARA VILLAGE,
PO RANDATHANI, TIRUR TALUK,
MALAPPURAM DISTRICT-679571.
BY ADVS.
MEENA.A.
K.C.KIRAN
VINOD RAVINDRANATH
M.R.MINI
M.DEVESH
THIS OP (CIVIL) HAVING COME UP FOR HEARING ON
16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C).No.2298 of 2021
3
JUDGMENT
Originally orders passed in I.A.Nos.7/2021
and 2/2021 in O.S.No.38/2021 on the file of the
Sub Court, Ottappalam have been challenged in
this Original Petition filed under Article 227
of the Constitution of India, by the plaintiffs
in the suit. Defendant is the respondent herein.
2. During hearing, learned counsel for the
respondent brought to the notice of this Court
that I.A.No.7/2021 is an application filed under
Order 39 Rule 1 of CPC and, therefore, the same
is an appealable order. At this juncture, it is
submitted by the learned counsel for the
petitioners that the petitioners will file a
proper appeal challenging the said order, since
the same is an appealable order.
3. Coming to the order passed in I.A.
No.2/2021, refusal of attachment, the learned
counsel for the respondent zealously contended
that, in this case, where specific performance
of contract of sale has been asked for, there is
O.P.(C).No.2298 of 2021
a statutory charge under Section 55(6)(b) of
Transfer of Property Act in respect of the
advance sale consideration and such an order of
attachment is unwanted.
4. In view of the submissions, the learned
counsel for the petitioners submitted that after
holding so, this Original Petition may be
closed.
In view of the nature of contentions raised
in the original suit, the statutory charge under
Section 55(6)(b) of Transfer of Property Act,
will govern the right of plaintiffs to get back
the purchase money, in the event return of
purchase money is allowed by granting decree.
Accordingly, this Original Petition is
disposed of with the above observation.
Sd/-
A.BADHARUDEEN, JUDGE.
ww
O.P.(C).No.2298 of 2021
APPENDIX OF OP(C) 2298/2021
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PLAINT IN
O.S.38/2021 BEFORE THE SUB COURT,
OTTAPALAM DATED 01.04.2021.
EXHIBIT P2 A TRUE COPY OF THE I.A.2/2021 IN
O.S.38/2021 BEFORE THE SUB COURT,
OTTAPALAM DATED 01.04.2021.
EXHIBIT P3 A TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE DEFENDANT IN I.A.2/2021 IN
O.S.38/2021 BEFORE THE SUB COURT,
OTTAPALAM DATED 12.08.2021.
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED
03.09.2021 IN O.S.38/2021 PASSED THE
SUB COURT, OTTAPALAM.
EXHIBIT P5 A TRUE COPY OF THE I.A.7/2021 IN
O.S.38/2021 BEFORE THE SUB COURT,
OTTAPALAM DATED 06.09.2021.
EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENT IN I.A.7/2021 IN
O.S.38/2021 BEFORE THE SUB COURT,
OTTAPALAM DATED 16.09.2021.
EXHIBIT P7 A TRUE COPY OF THE ORDER IN O.S.38/2021
PASSED THE SUB COURT, OTTAPALAM DATED
13.10.2021.
