Dileep C.S vs Eldho Mathew
2023 Latest Caselaw 1536 Ker

OP(C) NO. 56 OF 2023
                                     1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
   FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
                          OP(C) NO. 56 OF 2023
        AGAINST OS 26/2020 OF SUB COURT, PERUMBAVOOR
PETITIONER:

            DILEEP C.S
            S/O SASIDHARAN, CHEMMAYATHHOUSE, PANICHAYAM KARA,
            NEDUNGAPRA P.O, ASAMANNOOR VILLAGE,
            KUNNATHUNADTALUK, ERNAKULAM, PIN - 683545
            BY ADVS.
            K.S.ANEESH
            SHYAMDEEP S.SHENOY


RESPONDENT:

            ELDHO MATHEW,
            S/O MATHEW @ MATHAI, KALLUNGALHOUSE, KODANAD KARA,
            ALATTUCHIRA P.O, KODANAD, REPRESENTED BY POWER OF
            ATTORNEY HOLDER EBY.T.SAMUEL, S/O SAMUEL, RESIDING
            AT THATTAMPURATH HOUSE, CHUNDAKUZHY P.O,
            PERUMBAVOOR, PIN - 683544
     THIS     OP    (CIVIL)    HAVING    COME   UP    FOR    ADMISSION   ON
20.01.2023,    THE     COURT    ON   THE   SAME      DAY    DELIVERED    THE
FOLLOWING:
 OP(C) NO. 56 OF 2023
                              2

                        JUDGMENT

The original petition is filed challenging Ext.P16

order passed in I.A No.12/2022 in O.S No.26/2020 of the

Court of Subordinate Judge, Perumbavoor.

2. A reading of Ext.P16 order shows that it is an

order passed under Order 38, Rule 6 of the Code of Civil

Procedure ( in short, 'Code').

3. An order passed under Order 38 Rule 6 of the

Code, is appealable under Order 43 Rule 1(q) of the Code.

In the light of the alternative statutory remedy

available to the petitioner, the original petition is

dismissed, which is without prejudice to the right of the

petitioner to work out his remedies, in accordance with

law.

Sd/-

C.S.DIAS ma/20.1.2023 JUDGE OP(C) NO. 56 OF 2023

APPENDIX OF OP(C) 56/2023

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PLAINT IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 23.03.2020 Exhibit P2 THE TRUE COPY OF THE ATTACHMENT PETITION, IA NO.1/2020 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 23.03.2020 Exhibit P3 THE TRUE COPY OF THE CONDITIONAL ATTACHMENT ORDER DATED 28.04.2020 IN IA NO.1/2020 IN OS NO.26/2020 Exhibit P4 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER HEREIN IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 16.12.2020 Exhibit P5 THE TRUE COPY OF THE OBJECTION FILED BY THE APPELLANT HEREIN IN IA NO.1/2020 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 03.08.2020.

Exhibit P6 THE TRUE COPY OF THE PETITION FOR LIFTING THE ATTACHMENT FILED BY THE APPELLANT HEREIN AS IA NO.4/2020 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 03.08.2020 Exhibit P7 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT HEREIN IN IA NO.4/2020 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 27.09.2020 Exhibit P8 THE TRUE COPY OF THE ATTACHMENT SCHEDULE OF PROPERTIES ISSUED TO THE PETITIONER IN IA NO.1/2020 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOORDATED 23.03.2020. Exhibit P9 THE TRUE COPY OF THE VALUATION REPORT OF THE ITEM NO.3 AND 4 FOR THE ATTACHMENT SCHEDULED PROPERTIES BY THECHARTERED ENGINEER ER.DIAZ JOHN MANICKEN DATED 21.09.2020 Exhibit P10 THE TRUE COPY OF THE ADDITIONAL AFFIDAVIT OP(C) NO. 56 OF 2023

FILED BY THE RESPONDENT HEREIN IN IA NO.1/2020 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 20.11.2020 Exhibit P11 THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN FOR THE ADDITIONAL AFFIDAVIT IN IA NO.1/2020 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 23.11.2020 Exhibit P12 THE TRUE COPY OF THE COMMON ORDER IN IA NO.1/2020 AND IA NO.4/2020 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 24.11.2020 Exhibit P13 THE TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE RECOVERY OFFICER, KUNNATHUNADUTALUK, ASAMANNOOR VILLAGE Exhibit P14 THE TRUE COPY OF THE PETITION FILED BY THE APPELLANT HEREIN AS IA NO.12/2022 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 05.07.2022 Exhibit P15 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT HEREIN IN IA NO.12/2022 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 18.07.2022 Exhibit P16 THE TRUE COPY OF THE ORDER DATED 02.09.2022 IN IA NO.12/2022 IN OS NO.26/2020 ON THE FILES OF THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR DATED 02.09.2022 Exhibit P17 TRUE COPY OF THE VALUATION REPORT OF THE MACHINERIES IN ITEM NO.3 OF THE ATTACHMENT SCHEDULED PROPERTY DATED 21.09.2020 AND ISSUED BY THE CHARTERED ENGINEER ER.DIAZ JOHN MANICKEN AND SUBMITTED BEFORE THE SUBORDINATE JUDGES COURT AT PERUMBAVOOR