Yamuna Jacob vs Daina Johnson
2022 Latest Caselaw 10479 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                         THE HONOURABLE MR.JUSTICE C.S.DIAS

            FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944

                                 RP NO. 897 OF 2022

       AGAINST THE ORDER/JUDGMENT OP(C) 1542/2017 OF HIGH COURT OF KERALA

REVIEW PETITIONER/PETIITIONER:

             YAMUNA JACOB,
             AGED 46 YEARS,
             W/O N.K JACOB,
             NEDUMPARAMBIL
             HOUSE, NETTOR P.0,
             ERNAKULAM DISTRICT, PIN - 682040

             BY ADV SHRI.B.RAMACHANDRAN, CGC


RESPONDENT/RESPONDENT:

             DAINA JOHNSON,
             AGED 49 YEARS,
             W/O JOHNSON,
             MURINGAPPILLY HOUSE,
             NETTOR NORTH,
             ERNAKULAM, PIN - 682040

      THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07.10.2022, THE COURT

ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.P.No.897 of 2022

                              2



                             ORDER

Dated this the 07th day of October, 2022

Aggrieved by the judgment passed in the

original petition, the petitioner has filed the review

petition.

2. The review petitioner had filed the original

petition to set aside the proceedings dated 19.01.2017

to 27.10.2017 passed in O.S.No.1145/2014 of the Court

of the III Additional Munsiff, Ernakulam, and direct the

court below to pass orders on Exts.P6 to P9 judicially.

3. The petitioner's case, in brief, in the original

petition, was that she had filed the suit against the

respondent for realisation of money. The respondent

was set ex-parte. The petitioner let in evidence as PW1

and Exts. A1 to A8 were marked on the side. However,

the court below dismissed the suit. As a consequence

of the dismissal of the suit, the order of attachment R.P.No.897 of 2022

before judgment was also lifted. The petitioner does

not have the means to challenge the judgment and

decree in appeal, as she would have to pay an amount

of Rs.1 Lakh/- as court fee. The petitioner filed Exts.P6

to P9 applications to stay the order lifting the order of

attachment, to review the judgment, to keep in

abeyance the order lifting the attachment and an

application to rehear the suit. The respondent sought

time to file counter affidavits to the applications but

was making attempts to sell the attached property. In

the nature of the pleadings, the court below ought to

have decreed the suit. Hence, the original petition.

4. When the original petition came up for

admission on 18.04.2017, this Court issued notice

before admission and stayed the order lifting the

attachment before judgment for a period of two

months. The said order was subsequently extended

until further orders.

R.P.No.897 of 2022

5. When the original petition came up for

further consideration on 22.07.2022, this Court taking

note of the fact that the petitioner has not preferred

any appeal or moved the review petition and also

considering the mandate under Order 38 Rules 9 and

11A of the Code of Civil Procedure (in short, 'Code')

held that, as the suit itself was dismissed and it was

against the above statutory provisions to keep the

order of attachment before judgment in force.

Accordingly, this Court dismissed the original petition,

without prejudice to the right of the petitioner to work

out her remedies in accordance with law.

6. The petitioner now contends that there is an

error apparent on the face of the judgment, which may

be reviewed. Hence, the review petition.

7. Heard; Sri.B.Ramachandran, the learned

counsel appearing for the review petitioner.

8. Admittedly, the suit has been dismissed and R.P.No.897 of 2022

the order of attachment before judgment has been

lifted. The petitioner contends that since she does not

have the means to pay the court fee, the decree is to be

set aside under Article 227 of the Constitution of India.

I am afraid that the said course is impermissible in law.

If the petitioner is aggrieved by the decree, she has to

challenge the same in a right royal appeal and not in a

proceedings under Article 227.

9. Furthermore, when a suit is dismissed, the

order of attachment has to be lifted as provided under

Order 38 Rule 9 of the Code, and Rule 11A (2) of Order

38 of the Code specifically stipulates that even if the

suit is revived, it does not automatically revive the

order of attachment before judgment. At any rate, an

order of attachment before judgment in a dismissed

suit cannot be permitted to be kept alive in perpetuity

by an interim order in an original petition filed under

Article 227. I do no find any error apparent on the face R.P.No.897 of 2022

of the record of the judgment sought to be reviewed.

The review petition is devoid of any merits

and is hence dismissed.

Sd/-

C.S.DIAS Judge

NR/07/10/2022 R.P.No.897 of 2022

APPENDIX

PETITIONER'S ANNEXURES Annexure A-1 A TRUE COPY OF NOTICE DATED 30/07/2014 ISSUED BY THE REVIEW PETITIONER THROUGH COUNSEL Annexure A-2 A TRUE COPY OF REPLY NOTICE DATED 07/08/2014 Annexure A-3 A TRUE COPY OF CHITTY PASS BOOK DATED 01/ 10/2013 Annexure A-4 A TRUE COPY OF PASS BOOK FROM VIJAYA BANK DATED 11/06/2013 Annexure A-5 A TRUE COPY OF PASS BOOK DATED 15/03/2013 ISSUED FROM MARADU SERVICE CO-OPERATIVE BANK LTD NO- 43 Annexure A-6 A TRUE COPY OF PLP NO- 2040/2014 DATED 25/07/2015 Annexure A-7 A TRUE COPY OF NOTICE REGARDING CONVENTION HELD ON 17/01/2015 Annexure A-8 A TRUE COPY OF PROOF AFFIDAVIT DATED 07/10/2015 ALONG WITH THE DEPOSITION DATED 14/10/2015, OF THE REVIEW PETITIONER DURING THE CROSS EXAMINATION IN O.S .NO- 1145/2014 BEFORE THE MUNSIFF'S COURT ERNAKULAM Annexure A-9 A TRUE COPY OF JUDGMENT DATED 27.01.2017 IN O.S NO.1145/2014 OF THE MUNSIFFS COURT, ERNAKULAM