Kerala High Court
N.Achuthan Nair vs Saradha on 30 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
Thursday, the 30th day of March 2023 / 9th Chaithra, 1945
IA.NO.1/2022 IN OP(C) NO. 1156 OF 2022
OS 16/2022 OF II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM
PETITIONER/PLAINTIFF:
N.ACHUTHAN NAIR, AGED 70 YEARS S/O.LATE. M.N NARAYANA PILLAI,
RESIDING AT NILAMACHAND NIVAS, UPANIYOOR DESOM, KALLIYOOR VILLAGE,
OOKKODE P.O, THIRUVANANTHAPURAM, PIN - 695020.
RESPONDENTS/DEFENDANTS:
1. SARADHA, AGED 75 YEARS, D/O. KAMALAKSHI, GEETHA NIVAS, ARALUMOODU,
THALAYIL DESOM, ATHIYANNOOR VILLAGE, ARALUMOODU P.O, NEYYATTINKARA
TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695123
2. RADHAKRISHNAN NAIR, AGED 55 YEARS S/O. THANKAPPAN NAIR, USHAS,
ULLOOR, PRASANTH NAGAR, CHERUVAIKKAL VILLAGE, THIRUVANANTHAPURAM
TALUK, THIRUVANANTHAPURAM DISTRICT , PIN - 695011
3. P.K SIVANANDAN, AGED 66 YEARS S/O. P.SATHWIKAN, AAVALON HOUSE,
KAKKAD ROAD, KANNUR P.O, KANNUR DISTRICT, PIN - 670002
4. SARATH, AGED 30 YEARS S/O. SURENDRAN, KEDHARAM, MALAKAMB, HOUSE NO.
34/347G, MALAKAMB P.O, VENGERI VILLAGE, KOZHIKODE TALUK, KOZHIKODE
DISTRICT, PIN - 673009
5. SURAJ, AGED 34 YEARS S/O. SURENDRAN, KEDHARAM, MALAKAMB, HOUSE NO.
34/347G, MALAKAMB P.O, VENGERI VILLAGE, KOZHIKODE TALUK, KOZHIKODE
DISTRICT ., PIN - 673009
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to stay all further
proceedings in OS No.16 of 2022 pending before the 2nd Additional Sub
Court, Thiruvananthapuram pending disposal of the Original Petition
(Civil).
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and this Court's order dated
23-03-2023 and upon hearing the arguments of SRI.D.GANESH KUMAR, Advocate
for the petitioner and of SRI.K.K.DHEERENDRAKRISHNAN & SMT.N.P.ASHA,
Advocate for R1 and SRI.D.SAJEEV & LIGEY ANTONY, Advocates for R2 and R3
AND SRI. SABU S. (KALLARAMOOLA) & LEEJOY MATHEW.V., Advocates for R4 & R5,
the court passed the following:
(P.T.O)
C.S DIAS,J.
---------------------------
I.A No.1 of 2022
in
O.P (C) No.1156 of 2022
-----------------------------
Dated this the 30th March, 2023
ORDER
The application is filed to direct the respondents to
furnish security for an amount of Rs.54,75,000/- within a
time to be fixed by this Court and in the meantime to
order a conditional order of attachment of the
attachment schedule property.
2. The petitioner's case in the affidavit in support
of the application is that he is the plaintiff in O.S
No.16/2022 of the Court of the II Additional Subordinate
Judge, Thiruvananthapuram, which is filed against the
first respondent for return of the advance sale
consideration of Rs.30,00,000/- with interest that was
paid as per the agreement of sale dated 10.5.2017.
Although the petitioner was ready and willing to purchase
the property as per the above agreement, the first
respondent evaded the execution of the sale deed.
I.A No.1 of 2022
in
O.P (C) No.1156 of 2022
Later, the first respondent in collusion with the second
respondent sold 28.84 ares of property to the
respondents 2 and 3. The said respondents have sold a
portion of the property to the fourth respondent. It was
in the above circumstances that the petitioner was
constrained to file the suit. Although he filed I.A
No.1/2022 for an order of attachment before judgment,
the same was dismissed by the court below. The
petitioner has a statutory charge over the attachment
schedule property. It is now learnt that the first
respondent is attempting to alienate the attachment
schedule property to third parties, which would defeat
the petitioner from executing the decree that is likely to
be passed in his favour. Hence, the application.
3. When the application came up for
consideration on 23.3.2023, this Court passed a
conditional order of attachment before judgment
I.A No.1 of 2022
in
O.P (C) No.1156 of 2022
attaching the attachment schedule property till the
date of next hearing. Despite the above order, the first
respondent has failed to furnish the security for the
plaint claim or file a counter affidavit.
4. Heard; Sri.D.Ganesh Kumar, the learned
counsel appearing for the petitioner, Sri.
K.K.Dheerendrakrishnan, the learned counsel
appearing for the first respondent, Sri.D.Sajeev, the
learned counsel appearing for respondents 2 and 3 and
Sri.Sabu.S.Kallaramoola, the learned counsel appearing
for respondents 4 and 5.
5. On a consideration of the uncontroverted
averments in the affidavit filed in support of the
application, I am satisfied that the petitioner is entitled
for an order of attachment before judgment in respect
of the attachment schedule property described in the
attachment schedule dated 23.3.2023, otherwise it
I.A No.1 of 2022
in
O.P (C) No.1156 of 2022
would defeat the petitioner from executing the decree
that is likely to be passed in the suit.
6. Resultantly, I order the attachment before
judgment of the attachment schedule property
described in the attachment schedule dated 23.3.2023
until further orders.
The Registry is directed to communicate this order
to the Sub Registrar, Thiruvallom, Thiruvananthapuram
District and the Village Officer, Venganoor Village,
Thiruvananthapuram District.
Handover.
ma/30.03.2023 Sd/- C.S.DIAS, JUDGE
30-03-2023 /True Copy/ Assistant Registrar
