[Cites 3, Cited by 0]

Kerala High Court

M/S Elstone Tea Estates Limited vs Pius.C.Mundadan on 9 January, 2026

F.A.O.No.131 of 2025                           2026:KER:1383
                                 1



            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

                THE HONOURABLE MR. JUSTICE S.MANU

  FRIDAY, THE 9TH DAY OF JANUARY 2026 / 19TH POUSHA, 1947

                       FAO NO. 131 OF 2025

      AGAINST THE ORDER DATED 29.10.2025 IN I.A.NO.9 OF
2025 IN OS NO.133 OF 2013 OF SUB COURT, ERNAKULAM

APPELLANTS/DEFENDANTS NO.1 & 4 IN O.S.NO.133/2013 ON THE
FILES OF SUB COURT, ERNAKULAM:

     1      M/S.ELSTONE TEA ESTATES LIMITED
            KALPETTA REP. BY ITS MANAGING DIRECTOR,
            K.M.MOIDEENKUNHI, AGED 55, S/O LATE
            T.B.KUNHIMAHIN HAJI, PIN - 673121

     2      K.M.MOIDEENKUNHI
            AGED 55 YEARS
            S/O LATE T.B.KUNHIMAHIN HAJI, PADHOOR HOUSE,
            THEKKIL POST, KASARGODE, KERALA, MANAGING
            DIRECTOR, M/S ELSTONE TEA ESTATES LIMITED,
            KALPETTA, PIN - 673121


            BY ADVS.
            SHRI.VARGHESE C.KURIAKOSE
            SMT.AMRITHA.J




RESPONDENTS/PLAINTIFF & DEFENDANTS NO.2,3 AND 5 IN
O.S.NO.133/2013 ON THE FILES OF SUB COURT, ERNAKULAM:

     1      PIUS.C.MUNDADAN
            AGED 55 YEARS
            ADVOCATE, MUNDADAN HOUSE, CHURCH NAGAR, 37,
 F.A.O.No.131 of 2025                                     2026:KER:1383
                                       2



             ANGAMALLY, ERNAKULAM DISTRICT, PIN - 683572

     2       K.M.MUHAMMED SHERIEF
             AGED 58 YEARS
             S/O LATE T.B.KUNHIMAHIN HAJI, PADHOOR HOUSE,
             THEKKIL POST, KASARGODE, KERALA, DIRECTOR, M/S
             ELSTONE TEA ESTATES LIMITED, KALPETTA,
             PIN - 673121

     3       K.M.AHAMMED NIZAR
             AGED 50 YEARS
             S/O T.B.KUNHIMAHIN HAJI, PADHOOR HOUSE, THEKKIL
             POST, KASARGODE, KERALA, PIN - 67154

     4       KUNHIBI
             AGED 77 YEARS
             W/O LATE T.B.KUNHIMAHIN HAJI, PADHOOR HOUSE,
             THEKKIL POST, KASARGODE, KERALA, MANAGING
             DIRECTOR, M/S ELSTONE TEA ESTATES LIMITED,
             KALPETTA, PIN - 673121


             BY ADVS.
             SRI.DINESH R.SHENOY
             SMT.SHANTHIPRIYA D. SHENOY
             SHRI.MOHAMED SHALI NAMSHAD
             SHRI.ANANDA SUBRAMANIAM
             SMT.ANJANA A.



      THIS    FIRST    APPEAL   FROM       ORDERS   HAVING   COME   UP   FOR
ADMISSION ON 17.12.2025, THE COURT ON 09.01.2026 DELIVERED
THE FOLLOWING:
 F.A.O.No.131 of 2025                               2026:KER:1383
                                   3



                           S.MANU, J.
         --------------------------------------------------
                       F.A.O.No.131 of 2025
          -------------------------------------------------
            Dated this the 09th day of January, 2026

                           JUDGMENT

Defendants 1 to 4 in O.S.No.133 of 2013 on the files

of the Sub Court, Ernakulam, have filed this appeal

aggrieved by the order dated 29.10.2025 in I.A.No.9 of

2025. The 1st respondent herein filed the I.A. under Order

38 Rule 5 of the Code of Civil Procedure to direct the

defendants to appear and show cause why they shall not be

called upon to furnish security for an amount of

Rs.38,40,000/- towards the monetary claim raised in the

suit, court fee etc. and also to issue an interim order of

conditional attachment for the said amount lying in the

account of the 1st defendant maintained with Indian Bank,

Kalpetta Branch. The respondents filed counter and resisted

the application. The learned Sub Judge heard the parties F.A.O.No.131 of 2025 2026:KER:1383

and allowed the I.A by the impugned order. The defendants

have been directed to provide security within one month

from the date of the order or to show cause why the same

shall not be furnished. An order of conditional attachment

was also issued as prayed for.

2. Heard the learned counsel for the appellants and

the learned counsel for the 1st respondent.

3. Learned counsel for the appellant assailed the

impugned order by raising various contentions. He

submitted that in the suit originally there was an

attachment granted in I.A.No.1012 of 2013. He submitted

that the suit was decreed exparte. Application for setting

aside the exparte decree was rejected by the Trial Court.

Challenge against the same was repelled by this Court.

Finally, the appellants got relief in SLP No.15592 of 2022

from the Apex Court. The Hon'ble Supreme Court set aside

the exparte decree subject to payment of cost to the 1 st

respondent. The learned counsel hence submitted that the F.A.O.No.131 of 2025 2026:KER:1383

attachment ordered in I.A.No.1012 of 2013 is sufficient to

protect the interest of the 1st respondent. He submitted

that excessive attachments cannot be justified and the

impugned order amounts to excessive attachment. The

learned counsel further submitted that the 1 st respondent,

in the plaint averments, has stated that the 1 st appellant

Company owns vast extents of properties. To the contrary,

the 1st respondent adopted a contention in I.A.No.9 of 2025

that the amount available in the account sought to be

attached was the only available asset of the appellant

Company. The learned counsel further submitted that the

basic requirement of an application for attachment is that

the property sought to be attached shall be the property of

the defendant/debtor. In the case at hand the amount

sought to be attached was obtained by furnishing bond as

directed by the Division Bench of this Court as the

Government has filed suit against the 1st appellant

Company disputing its title over the estates. The F.A.O.No.131 of 2025 2026:KER:1383

Government acquired a portion of an estate of the

Company for rehabilitation of sufferers of a land slide and

the compensation was released as directed by this Court.

The appellant - Company has furnished bond for

repayment of the amount to the Government in case the

suit being decreed in favour of the Government. These

aspects have been pleaded by the 1 st respondent himself

before the Trial Court. The learned counsel for the appellant

hence submitted that the amount sought to be attached

was even according to the case of the 1 st respondent, not a

property absolutely vested with the 1st appellant Company.

In such a situation granting of attachment was not justified.

4. The learned counsel for the appellant also

submitted that if the 1st respondent has a case that the

amount available in the account of the 1 st appellant

Company is absolutely a property of the Company without

any encumbrances, then the landed assets of the Company

should also be considered as free from any disputes and F.A.O.No.131 of 2025 2026:KER:1383

claims. In such an event, there is absolutely no necessity to

attach the amount available in the account as the Company

has sufficient assets to satisfy the plaint claim. Therefore,

the learned counsel contended that in any view of the

matter attachment of the amount available in the account

of the appellant Company was not justified.

5. The learned counsel for the appellant highlighted

the perceived inconsistencies in the pleadings of the 1 st

respondent. He submitted that I.A.No.9 of 2025 was filed

undaunted with the dismissal of a previous interim

application filed for directing the appellants to furnish

security. He submitted that the attempt of the 1 st

respondent is to trouble the appellants by securing an

attachment at any cost. He hence submitted that the

impugned order be set aside.

6. In reply to the contention of the 1 st respondent

regarding maintainability of the appeal, the learned counsel

submitted that the appeal has been filed under Order 43 F.A.O.No.131 of 2025 2026:KER:1383

Rule 1(Q) of the Code of Civil Procedure. He asserted that

the appeal is perfectly maintainable as the learned Sub

Judge has passed an order of conditional attachment also.

The learned counsel relied on the following judgments to

contend that the appeal is maintainable:

(1) Sadasivan K. v. Surendradas [2020(5)KHC 461] (2) Mathukutty Mathew v. Sunny and Others [2015 KHC 114]

7. The learned counsel for the 1 st respondent opened

his arguments by submitting that this appeal is not

maintainable as the order impugned has been passed under

Order 38 Rule 5 of the Code of Civil Procedure. He

contended that an appeal under Order 43 Rule 1 of the CPC

would not lie against an order passed under Order 38 Rule

5 of the CPC. He further submitted that though the 1 st

respondent is disputing the maintainability of the appeal,

without any hesitation the 1 st respondent is prepared to

defend this appeal on merits too.

F.A.O.No.131 of 2025 2026:KER:1383

8. The learned counsel refuted the submissions of the

learned counsel for the appellant regarding excessive

attachments. He pointed out that the order of attachment

dated 02.08.2014 in I.A.No.1012 of 2013 did not fructify

for the reason that the property attached in the said I.A.

could not be identified and it was reported by the Amin that

the same was a reserved forest. He pointed out that a

report to the effect that the property was not attached was

submitted by the Amin attached to the District Court,

Kalpetta on 21.08.2013. Therefore, the learned counsel

contended that there was no attachment in force as

contended by the appellants. He also pointed out that in

view of the order passed by the Hon'ble Supreme Court in

SLP No.15592 of 2022 setting aside the exparte decree, the

E.P. was dismissed. Hence the attachment granted by the

Execution Court also ceased to be in effect. Therefore, the

learned counsel submitted that the 1st respondent was

perfectly justified in seeking furnishing of security and F.A.O.No.131 of 2025 2026:KER:1383

attachment to secure the plaint claims.

9. In reply to the contention of the learned counsel for

the appellant that that amount available in the account of

the 1st appellant Company was released to it on furnishing

bonds, subject to the claims of the Government, the

learned counsel for the 1 st respondent made reference to

the order dated 27.08.2025 in W.A.No.229 of 2025. He

pointed out that the Division Bench, while directing the

Registry to release Rs.24 Crores to the account of the 1 st

appellant observed in the order that any 3 rd party who is

entitled to raise any claim against the appellant Company

shall be free to invoke appropriate legal mechanisms even

for attaching or for recovering the amount transferred to

the appellant. He hence submitted that in view of the

observations made by the Division Bench, the 1 st

respondent or any other 3rd party was free to seek

attachment of the amount available in the account of the 1 st

appellant Company.

F.A.O.No.131 of 2025 2026:KER:1383

10. With respect to the contention of the appellants

that the 1st respondent adopted inconsistent pleas and

sought furnishing of security and conditional attachment

even after another application for furnishing security was

rejected by the Trial Court, the learned counsel submitted

that the 1st respondent filed I.A.No.9 of 2025 on coming to

know that sufficient fund is available in the account of the

appellant Company as the amount deposited by the

Government in connection with the acquisition was

transferred to its account pursuant to the order passed by

the Division Bench in W.A.No.229 of 2025. He submitted

that it is well within the authority of the Trial Court to pass

appropriate orders under Order 38 Rule 5 of the CPC at any

stage of the proceedings to secure the plaint claims. He

hence contended that there was no bar in filing another

interim application and granting of the reliefs by the Trial

Court. He also submitted that in view of the suit filed by the

Government challenging the title of the 1st appellant F.A.O.No.131 of 2025 2026:KER:1383

Company, to secure the interest of the 1 st respondent/

plaintiff, it is necessary to direct the appellants to furnish

security and to attach the amount available in their

account. Further it was contended that in the previous

interim application there was no prayer for attachment. It

was also argued that the crucial averments in the affidavit

filed in support of the interim application were not refuted

by the appellants.

11. Regarding the contention with respect to

maintainability of the appeal canvased by the 1 st

respondent it is to be noted that by the impugned order the

appellants have not only been called upon to furnish

security but the Trial Court has granted the relief of

attachment also. In the nature of the reliefs granted and

also in view of the judgment in Mathukutty Mathew

(Supra) as also the judgment of the Full Bench in

Sadasivan K. (Supra), I am of the view that this appeal is

maintainable.

F.A.O.No.131 of 2025 2026:KER:1383

12. On merits, the prime contention raised by the

appellant is regarding excessive attachments. It is trite law

that excessive attachment is impermissible. According to

the appellant the attachment granted originally in the suit

by order dated 02.08.2014 in I.A.No.1012 of 2013 is still in

force. However, perusal of the report dated 21.08.2013 of

the Amin shows that the property was not attached as it

could not be properly identified and also for the reason that

the same was a reserved forest. No other order was

thereafter passed in the I.A.. Hence the contention that the

attachment ordered in I.A.No.1012 of 2013 is still in force

cannot be accepted. It is also to be noted that the

execution proceedings got closed as the exparte decree was

set aside by the Hon'ble Supreme Court. Therefore

attachment, if any, granted by the Execution Court also

ceased to be in force.

13. Another major contention raised by the appellants

is that the amount available in the account of the 1 st F.A.O.No.131 of 2025 2026:KER:1383

appellant Company was released to it on execution of bond

in view of the title dispute raised by the Government. It

was therefore contended that the basic condition/

requirement for passing an order under Order 38 Rule 5 of

the CPC was not satisfied. I am of the view that the said

argument also cannot be accepted in view of the order of

the Division Bench dated 27.08.2025 in W.A.No.229 of

2025. The relevant observation of the Division Bench reads

as under:

"If any third party, who is entitled to raise any claim against the appellant company, shall be free to invoke appropriate legal mechanisms, even for attaching or for recovering the amount transferred to the appellant."

14. It is to be noted that the amount was released to

the 1st appellant pursuant to orders passed by the Division

Bench of this Court. When the Division Bench made it clear

that the third parties can proceed against the appellant with

respect to their claims by resorting to appropriate legal

actions including attachment, the submissions of the F.A.O.No.131 of 2025 2026:KER:1383

appellants cannot be countenanced.

15. Regarding the contention that the 1 st appellant

Company has vast landed properties and therefore there is

no necessity to secure the interest of the 1 st

respondent/plaintiff by attaching the amount available in

the account, I find merit in the contention of the 1 st