Dismissed

Sree Gokulam Chit and Finance Co. (P) Ltd. v. Jobbey K. Mathew

Kerala HC5 Nov 2013OP(C)/3801/2013

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition filed under Article 227 challenging the lifting of property attachment. The court held that the impugned order was appealable under CPC but the petitioner failed to challenge it within the stipulated period, resulting in dismissal for delay and laches.

What did the court decide?

The original petition was dismissed on the ground of delay and laches.

Sree Gokulam Chit and Finance Co. (P) Ltd. Vs Jobbey… — Execution and Attachment | Kerala HC (2013)

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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 P.N.RAVINDRAN

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TUESDAY, THE 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935

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OP(C).No. 3801 of 2013 (O)

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[I.A. NO.1033/2010 IN O.S. NO.42/09 OF THE SUB COURT, MUVATTUPUZHA]

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PETITIONER/PLAINTIFF:

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SREE GOKULAM CHIT AND FINANCE CO. (P) LTD., 356, ARCOT ROAD, KODAMBAKKOM, CHENNAI-600 024, REPRESENTED BY POWER OF ATTORNEY HOLDER MR.RAJEEV M.B., AGED 44 YEARS, S/O.LATE PADMANABHAN NAIR, MANAGER (BUSINESS), MUVATTUPUZHA BRANCH, YAS COMPLEX, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.

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BY ADVS.SRI.RAJ MOHAN R.PILLAI, SRI.P.BANI.

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RESPONDENTS:

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1. JOBBEY .K. MATHEW, AGED 37 YEARS,

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S/O.K.M.MATHEW, KALLEPARAMBIL HOUSE,, KIZHAKKUMBHAGOM, ERTTUMANOOR VILLAGE, KOTTAYAM-689 621.

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2. P.K.UTHUPPU, AGED 52 YEARS, S/O.KURIAKOSE .P., PAZHUKKALAYIL, KADATHY, MUVATTUPUZHA-686 661.

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3. NIRMALA THOMAS,

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D/O.JOSEPH, AGED 45 YEARS, KATTIKKARAN HOUSE, THRIKKANARVATTOM DESOM, ERNAKULAM.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Prv.

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O.P(C).NO.3801/2013-O:

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1. CERTIFIED COPY OF THE JUDGMENT AND DECREE IN OS NO.42/2009 BEFORE THE SUB COURT, MUVATTUPUZHA.

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EXHIBIT P2. TRUE COPY OF THE CLAIM PETITION IN IA NO.1033/2010 IN OS NO.42/2009 TO LIFT THE ATTACHMENT BEFORE THE SUB COURT, MUVATTUPUZHA DATED 19/7/2010.

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EXHIBIT P3. TRUE COPY OF THE OBJECTION FILED BY THE PEITITONER/PLAINTIFF IN IA NO.1033/2010 IN OS NO.42/2009.

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EXHIBIT P4. TRUE COPY OF THE ORDER IN IA NO.1033/2010 IN OS NO.42/2009 OF THE SUB JUDGE, MUVATUPUZHA DATED 7/3/2012.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.A. TO JUDGE.

Prv.

P.N.RAVINDRAN, J.

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----------------------------------------O.P.(C).No.3801 of 2013

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Dated this the 5^th day of November, 2013

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O R D E R

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The petitioner is the plaintiff in O.S.No.42 of 2009 on the file

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of the Court of the Subordinate Judge of Muvattupuzha. Respondents 1 and 2 are the defendants therein. In the suit, an item of immovable property was attached before judgment by order passed on 24.2.2009 on I.A.No.361 of 2009. After the order of attachment was passed, the third respondent herein filed I.A.No.1033 of 2010 under Order XXI rule 58 of the Code of Civil Procedure praying that the order of attachment may be lifted. In the affidavit filed in support of the application, a copy of which is on record as Ext.P2, she contended that she purchased the property in the year 2007 as per sale deed Nos.3544/2007 and 3850/2007 of the Sub Registrar's Office, Puthencruz, that the defendants have no subsisting title, interest or possession over the plaint schedule

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O.P.(C)No.3801 of 2013

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-: 2 :-

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property and therefore, the property is not liable to be attached for the debts of the defendants. The trial court considered the said application and allowed it by Ext.P4 order passed on 7.3.2012. Consequently the attachment effected by order passed on 24.2.2009 on I.A.No.361 of 2009 was lifted. The suit itself was thereafter tried and decreed allowing the plaintiff to realise the sum of Rs.24,05,464/- with interest and costs from the defendants and their assets as per judgment delivered on 11.1.2013. The plaintiff has long thereafter filed this original petition under Article 227 of the Constitution of India challenging Ext.P4 order passed on 7.3.2012 whereby the order of attachment passed on 24.2.2009 was lifted.

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Order XXI rule 58(4) of the Code of Civil Procedure stipulates that where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Ext.P4 is thus an appealable order. Besides, Ext.P4 order was passed on 7.3.2012. The petitioner did not challenge it for more than 19 months. There is also no

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O.P.(C)No.3801 of 2013

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-: 3 :-

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explanation from the side of the petitioner as to why he did not challenge Ext.P4 order till the instant original petition was filed on 29.10.2013. Therefore, the original petition is liable to be dismissed on the ground of delay and laches as well.

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In such circumstances the original petition fails and is dismissed.

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P.N.RAVINDRAN, Judge.

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ahg.

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P.N.RAVINDRAN, J.

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-----------O.P.(C).No.3801 of 2013

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JUDGMENT

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5^th November, 2013

Sree Gokulam Chit and Finance Co. (P) Ltd. v. Jobbey K. Mathew

Case brief

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Sree Gokulam Chit and Finance Co. (P) Ltd. v. Jobbey K. Mathew

Case brief

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