Allowed

Joseph Prakash v. Habeebulla

Kerala HC10 Feb 2011OP(C)/276/2011

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an original petition filed by a petitioner seeking direction for the Sub Court to pass final orders expeditiously in an application for attachment before judgment regarding a specific performance suit, setting a one-month deadline.

What did the court decide?

Directed the Sub Court, Thodupuzha to consider and pass final orders in I.A.No.694 of 2007 expeditiously, within one month, and to communicate the undertaking and orders to the Sub Registrar.

Joseph Prakash Vs Habeebulla — Specific Performance | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN

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THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932

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OP(C).No. 276 of 2011(O)

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-----------------------AGAINST THE ORDER IN IA 694/07 IN OS.27/2006 of SUB COURT,THODUPUZHA

PETITIONER

JOSEPH PRAKASH,

AGED 41 YEARS, S/O.FRANCIS,

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THONIKUZHIYIL HOUSE, THUDANGANAD KARA,

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MUTTOM VILLAGE, THODUPUZHA TALUK.

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BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM)

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RESPONDENT(S):

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HABEEBULLA, AGED 61 YEARS, S/O.MOHAMMED, VADAKKAYIL HOUSE, ACHANKAVALA, MADAKKATHANAM P.O., THODUPUZHA-685 584

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AYSHA, AGED 29 YEARS, W/O.HARIS, KOTTAYIL HOUSE, MYLOORKARA, VARAPPETTY, KOTHAMANGALAM, ERNAKULAM DISTRICT-686 690

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.T.SANKARAN, J .

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O.P(C).No.276 OF 2011

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Dated this the 10th day of February, 2011

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JUDGMENT

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Though notice was served by Special Messenger,

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there is no appearance for the respondents.

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2. The petitioner is the plaintiff in

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O.S.No.27 of 2006 on the Court of the Subordinate

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Judge of Thodupuzha. The suit is for specific
performance of the agreement for sale dated
26.2.2003 entered into between the petitioner and
the first respondent. The petitioner says that he
was ready and willing to perform his part of the
contract. It is stated that the first respondent
assigned the property to the second respondent by
registered assignment deed No.212 of 2004 and 213
of 2004 on 14.1.2004. It is stated that the second
respondent is none other than the daughter of the
first respondent.

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O.P(C).No.276 OF 2011 2

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3. The petitioner filed I.A.No.694 of 2007
under Rule 5 of Order 38 of the Code of Civil
Procedure to attach before judgment the plaint
schedule property. In the application, it is
stated that in order to defeat the decree that may
ultimately be granted in favour of the petitioner,
attempts are being made to sell the plaint schedule
property by the second respondent. It is alleged
that respondents 1 and 2 had entrusted the matter
to real estate brokers. In I.A.No.694 of 2007, the
second respondent filed an undertaking affidavit
stating that she has no intention to sell or
alienate the attachment schedule property. She also
undertook in the affidavit that she will not sell,
encumber or alienate the attachment schedule
property.

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4. The grievance of the petitioner is that the

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court below has not passed final orders in
I.A.No.694 of 2007. The learned counsel for the

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petitioner submits that the undertaking made by the

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O.P(C).No.276 OF 2011 3

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second respondent, if violated, would at best
result in her punishment. But it would be
difficult to avoid transfer of the property made to
strangers. Moreover, the petitioner will have to
fight a litigation against parties who acquire
rights subsequently. The counsel submitted that
though Section 52 of the Transfer of Property Act
may apply, any further alienation of the property
would create difficulty to the petitioner.
Therefore, the petitioner has prayed for a
direction to the Sub Court, Thodupuzha to consider
and pass orders in I.A.No.694 of 2007.

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5. In the facts and circumstances of the case,

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without expressing any opinion on the merits of the
case, or on the contentions raised by the
petitioner, the Original Petition is disposed of
directing the Sub Court, Thodupuzha to consider and

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pass final orders, in I.A.No.694 of 2007, as
expeditiously as possible, and at any rate within a
period of one month from the date of receipt of a

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O.P(C).No.276 OF 2011 4

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copy of the judgment.

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6. The learned counsel for the petitioner also
submitted that the undertaking given by the second
respondent and any order that may be passed by the
court below may be directed to be communicated to
the Sub Registrar concerned. The court below will
consider this request also in accordance with law,
and on the merits of the case.

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The Original Petition is allowed as above.

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K.T.SANKARAN,

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JUDGE.

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cms

Joseph Prakash v. Habeebulla

Case brief

What is this about?

What did the court decide?

Joseph Prakash v. Habeebulla

Case brief

What is this about?

What did the court decide?

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