K. J. Antony vs Shilpa Josey
2025 Latest Caselaw 2265 Ker

Kerala High Court

K. J. Antony vs Shilpa Josey on 5 August, 2025

                                                               2025:KER:58548
OP(C) NO. 1624 OF 2025

                                     1
                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                 THE HONOURABLE MR. JUSTICE K. NATARAJAN

         TUESDAY, THE 5TH DAY OF AUGUST 2025 / 14TH SRAVANA, 1947

                             OP(C) NO. 1624 OF 2025

         AGAINST THE ORDER/JUDGMENT DATED 12.06.2025 IN OS NO.73 OF 2024

OF   ASSISTANT    SESSIONS     COURT/PRINCIPAL   SUB   COURT    /   COMMERCIAL

COURT,KOCHI


PETITIONER/S:

              K. J. ANTONY
              AGED 51 YEARS
              KADAMPARAMBIL HOUSE, 20/946, PALLURUTHY, KOCHI, PIN -
              682006


              BY ADVS.
              SHRI.N.RATHEESH
              SMT.SUMA RATHEESH
              SHRI.SHANKAR RETHEESH
              SHRI.ABOOBACKER SIDDIQUE BIN SHERIF
              SHRI.MUHAMMED AJMAL




RESPONDENT/S:

     1        SHILPA JOSEY
              KADAMPARAMBIL HOUSE, NOW RESIDING AT GOD'S OWN VILLA, NEAR
              JACOB APARTMENT, ST. LAWRENCE CHURCH ROAD, PALLURUTHY,
              COCHIN, PIN - 682006

     2        CATHERINE JOSEY
              REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SHILPA
              JOSEY, KADAMPARAMBIL HOUSE, NOW RESIDING AT GOD'S OWN
              VILLA, NEAR JACOB APARTMENT, ST. LAWRENCE CHURCH ROAD,
                                                       2025:KER:58548
OP(C) NO. 1624 OF 2025

                                   2
           PALLURUTHY, COCHIN, PIN - 682006

     3     RYAN JOSEY
           REPRESENTED BY THE MOTHER AND NATURAL GUARDIAN SHILPA
           JOSEY, KADAMPARAMBIL HOUSE, NOW RESIDING AT GOD'S OWN
           VILLA, NEAR JACOB APARTMENT, ST. LAWRENCE CHURCH ROAD,
           PALLURUTHY, COCHIN, PIN - 682006


           BY ADVS.
           SHRI.P.SATHISAN
           SHRI.SHIBU B.S
           SHRI.BIJU P.PAUL
           SMT.TEZNY A.K.
           SHRI.ALVIN JEWEL S.S.
           SMT.VIDHYA T.U.
           SMT.ANTIJA JAMES
           SMT.SWALIHA SELMI T.R.
           SMT.LEENA VARGHESE



     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                      2025:KER:58548
OP(C) NO. 1624 OF 2025

                                  3
                            JUDGMENT

(Dated this the 05th day of August, 2025)

This original petition has been filed by the petitioner for

setting aside the order in I.A No.2/2024 in OS No. 73/2024

pending on the files of the Sub Court, Kochi.

2.Heard the arguments of the learned counsel for the

petitioner and the learned counsel for the respondents.

3.The case of the petitioner is that the petitioner filed a suit

against the respondents for realization of money for Rs.16,23,762/-

together with 12% interest. The defendant also appeared and filed

a written statement. During the pendency of the suit, the plaintiff

filed an interlocutory application under Order 38 Rule 5 of the Civil

Procedure Code for attaching the property of the defendant, which

came to be dismissed. Hence, the petitioner approached this court.

4. The learned counsel for the petitioner has contended that

the trial court has committed an error in dismissing the application,

believing the respondents' objection statement, by disbelieving the

contention of the petitioner regarding the repayment of the loan 2025:KER:58548 OP(C) NO. 1624 OF 2025

amount of Rs. 16,23,762/-.

5.The defendant is attempting to alienate the property by

seeking permission from the Family Court by filing the G(OP)

case, to defeat the rights of the petitioner in the future for

enjoying the fruits of the decree. Therefore, the order under

challenge is liable to be set aside, and the petitioner seeks an

order for attachment of the defendants' property, as prayed for in

the interlocutory application.

6.Per contra, the learned counsel for the respondents seriously

objects to the petition, mainly on the ground that the alleged

agreement was executed on 27.05.2015 and on the same day, the

respondent's husband and his sister also executed a relinquishment

deed, where it is sated that Rs.16,23,762/- have been paid by the

petitioner/plaintiff for relinquishing the right over the property

mentioned in the document and his sister also received

Rs.2,95,229/- and relinquished the right. Subsequently, as per

Ext.P8, the husband of the 1st respondent and his mother executed

a registered relinquishment deed on 27.11.2020. The sister also 2025:KER:58548 OP(C) NO. 1624 OF 2025

executed a separate relinquishment deed on the plaintiff, which

clearly reveals that the amount paid by the petitioner was only for

relinquishing the rights of the respondent's husband and not as sale

consideration. Therefore, there is no prima facie material to place

on record to justify the attachment of the defendant's property.

However, it is contended that the defendants have been left with no

means or source of income for their survival. Therefore, the 1 st

respondent filed a petition seeking permission from the court to sell

the property for the purpose of survival, education, and medical

facilities.

7. Having heard the arguments and perused the records.

8.It is not in dispute that the petitioner filed a suit for

realization of money of Rs.16,23,762/-. However, Ext.P7 produced

by the defendants reveals that, for the said amount, the husband of

the 1st respondent, along with his sister-in-law, agreed to execute a

relinquishment deed in favour of the petitioner on the same day i,e.,

on 27.05.2015. Subsequently, in the year 2020, the husband of the

respondent along with his mother, executed a registered

relinquishment deed in favour of the plaintiff and it is shown that 2025:KER:58548 OP(C) NO. 1624 OF 2025

an amount of Rs.12,06,000/- has been received.

9.It is also submitted by the learned counsel for the

respondents that the sister of the 1st respondent's husband has also

executed a separate registered deed in favour of the plaintiff for

relinquishing the right over the property owned by the petitioner,

deceased brother and deceased father.

10.The learned counsel for the petitioner has contended that

it is a different transaction and has nothing to do with this

transaction. The facts presented by the plaintiff/petitioner, along

with the disputed issues, are required to be adjudicated by the trial

court by framing appropriate issues and by permitting both parties

to lead evidence However, in order to satisfy the petitioner's claim

for attachment, the petitioner must be able to show that there is a

loan agreement executed by the 1st defendant along with her

deceased husband, acknowledging the receipt of Rs. 16,23,762/-

for the purpose of constructing the house. Ext.P3 document bears

the handwriting of the deceased husband of the 1st respondent.

Whether this written document was executed by the husband of the

1st respondent or by the plaintiff is to be decided by the court in 2025:KER:58548 OP(C) NO. 1624 OF 2025

the trial, while dealing with the merits of the case. However, it is a

definite case for the defendants to alienate the property for their

survival and filed an application seeking the court's permission for

alienation of the said property.

11.Here, the suit document of the petitioner shows that these

documents were also executed by the 1st defendant along with her

husband, showing that the 1st defendant and her husband signed

the documents for borrowing a loan to build the house. Now, that

property is about to be alienated by the defendant Nos 1 to 3.

Therefore, it is necessary to protect the petitioner's interest,

otherwise, if the property is allowed to be sold at this stage, it is

very difficult for the plaintiff in the future to enjoy the fruits of the

decree and to realize money. Therefore, to protect the petitioner's

interest, it is necessary to attach the property of the defendant

under Order 38 Rule 5 of CPC.

12.However, at this stage, it is also should not be forgotten

that the husband of the 1st defendant passed away long ago due to

some serious ailment. Defendants Nos.2 and 3 are the minor

children, and no other earning members in the family, therefore, 2025:KER:58548 OP(C) NO. 1624 OF 2025

they need to sell the property for survival.

13.On the other hand, it is also the duty of the court to protect

the plaintiff's right to recover the money in case he succeeds in the

suit. On the other hand, the respondents need to sell the property

for survival, and the petitioner is pressing for the defendants also

to execute a security for an amount of Rs.16, 23,762/- before the

said court and they are permit to alienate the property for the

purpose of their survival either for education of the children or their

livelihood. Therefore, in the interest of justice, the defendants shall

be required to furnish security before the trial court.

14.Accordingly, I am of the view that the order under

challenge required to be set aside and modified.

15.In the result, the original petition is allowed in part.

The order under challenge is hereby set aside. The defendant

is directed to furnish a security for Rs.16,23,762/- before the trial

court after alienation of the said property. The defendant shall

deposit Rs.16,23,762/- before the trial court within ten days after

alienating the property or getting an advance amount from the

proposed purchaser, and if any such amount is deposited, the same 2025:KER:58548 OP(C) NO. 1624 OF 2025

shall be deposited in a Fixed deposit in the name of the Court for

future realization. All the contentions of the parties are left open.

Sd/-

K. NATARAJAN JUDGE SJ 2025:KER:58548 OP(C) NO. 1624 OF 2025

APPENDIX OF OP(C) 1624/2025

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE PLAINT DATED 07.12.2024 IN O.S. NO. 73 OF 2024 ON THE FILE OF THE HON'BLE SUB COURT, KOCHI.

Exhibit P2 TRUE COPY OF SAID I.A. NO.2/2024 FILED UNDER ORDER 38 RULE 5 AND SECTION 151 OF THE CODE OF CIVIL PROCEDURE FOR A CONDITIONAL ORDER OF ATTACHMENT SUBMITTED IN EXHIBIT P1 .

Exhibit P3 THE TRUE COPY OF THE AGREEMENT DATED 27.05.2015 ENTERED INTO BETWEEN 1ST RESPONDENT AND HER LATE HUSBAND JOSEY WITH THE PETITIONER.

Exhibit P3 (a) THE ENGLISH TRANSLATION OF EXHIBIT P3. Exhibit P4 THE TRUE COPY OF THE LAWYER NOTICE DATED 07.12.2024.

Exhibit P5 THE TRUE COPY OF THE COUNTER AFFIDAVIT DATED 19.12.2024 SUBMITTED BY THE RESPONDENTS AGAINST EXHIBIT P2 .

Exhibit P6 THE TRUE COPY OF CERTIFIED COPY OF THE ORDER DATED 12.06.2025 IN I.A. NO. 2 OF 2025 IN O.S. NO.73 OF 2024 ON THE FILE OF THE HON'BLE SUB COURT, KOCHI.

Exhibit P7 THE TRUE COPY OF THE AGREEMENT ENTERED INTO A STAMP PAPER DATED 27.05.2015 PRODUCED BY THE RESPONDENTS BEFORE THE TRIAL COURT WHICH WAS PRODUCED AND MARKED AS EXHIBIT B2 MENTIONED IN EXHIBIT P6 ORDER.

Exhibit P8 TRUE COPY OF THE DOCUMENT MARKED AS EXHIBIT B4 IN EXHIBIT P6 ORDER.