The High Court held that the petitioner's Order XXXVIII Rule 8 claim petition was filed prior to property attachment, rendering it non-maintainable. The court allowed withdrawal of the pending petition and granted liberty to file a fresh claim petition.
Liberty granted to file a fresh claim petition after withdrawing the pending I.A.No.4988/2011.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
MONDAY, THE 18TH DAY OF FEBRUARY 2013/29TH MAGHA 1934
OP(C).No. 641 of 2013 (O)
I.A.NO.4988/2011 IN O.S.NO.1422/2010 OF SUB COURT, THIRUVANANTHAPURAM
PETITIONER(S)/CLAIM PETITIONERS :-
1. M/S.KANNAMTHANAM & COMPANY, T.C. 21/79(1), KILLIPALAM, KARAMANA, THIRUVANANTHAPURAM. REPRESENTED BY ITS MANAGING PARTNER MANEESH THOMAS.
2. M/S.KARIMALA GRANITES AND AGGREGATES PVT.LTD., T.C.NO.21/77, KILLIPALAM, KARAMANA THIRUVANANTHAPURAM REPRESENTED BY ITS DIRECTOR MANEESH THOMAS.
BY ADVS.SRI.BECHU KURIAN THOMAS SRI.PAUL JACOB (P) SMT.NISHA JOHN SRI.ENOCH DAVID SIMON JOEL SMT.TINA ALEX THOMAS SRI.S.SREEDEV SRI.RONY JOSE
RESPONDENT(S)/PLAINTIFF & DEFENDANT :-
1. JACOB ALEXANDER, PADINJARE PUTHEN VEEDU, 38 CHEMPAKASSERY NAGAR, PATTOM, THIRUVANANTHAPURAM.
2. M.T.VARGHESE, T.C.NO.20.1654, ORIENT HOUSE, KUNJALUMOODU KARAMANA, THIRUVANANTHAPURAM - 695 002.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt
OP(C).No.641/2013
APPENDIX
Petitioner's Exhibits :-
Ext.P1 :- Copy of the petition in I.A.No.7537/2010 in O.S.1422/2010 on the files of Sub Court, Thiruvananthapuram.
Ext.P2 :- Copy of the petition dated 17-8-2011 in I.A.4988/2011 in O.S.1422/2010 of Sub Court, Thiruvananthapuram. Ext.P3 :- Copy of the order of attachment dated 244-2012 issued in I.A.7537/2012 in O.S.1422/2010 on the files of the Sub Court, Trivandrum. Ext.P4 :- Copy of the order of attachment dated 8- 2-2012 in I.A.No.7537/2010 in O.S.1422/2010. Ext.P5 :- Copy of the 'B' Diary in O.S.1422/2010.
Respondent's Exhibits :- NIL.
//True Copy//
P.A. to Judge
N.K.BALAKRISHNAN, J. -------------------------------O.P.(C) No.641 of 2013
--------------------------------Dated this the 18th day of February 2013
J U D G M E N T
This original petition has been filed by the petitioners, who claim to have filed a petition under Order XXXVIII Rule 8 of CPC before the trial court in a pending suit. But it was stated that, that petition was filed before the property was actually attached. That petition (I.A.No.4988/2011) is stated to be pending. But since that petition was filed before the attachment was effected, that petition may not be maintainable and so, the petitioners are advised to file a fresh claim petition, the learned counsel for the petitioners submits. Therefore, the petitioners are given liberty to file a fresh claim petition after withdrawing the claim petition (I.A.No.4988/2011) pending before the trial court.
With this observation, this petition is closed. If such a claim petition is filed, the trial court will
O.P.(C) No.641 of 2013
-: 2 :-
dispose of the same after giving opportunity to the respondents to file counter and after hearing both sides as expeditiously as possible.
N.K.BALAKRISHNAN, JUDGE.
Jvt
1 issue framed by the court
Whether an Order XXXVIII Rule 8 claim petition filed before the attachment of property is maintainable?
1 provisions across 1 enactments
M/s.Kannamthanam & Company
M/s.Karimala Granites and Aggregates Pvt.Ltd.
Jacob Alexander
M.T.Varghese
N.K.Balakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
