This court dismissed an infructuous first appeal filed against an order vacating attachment in a civil suit. Since the underlying suit had been disposed of, the appeal was rendered liable to dismissal.
The first appeal was dismissed as infructuous.
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 K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
FRIDAY, THE 21ST DAY OF NOVEMBER 2014/30TH KARTHIKA, 1936
FAO.No. 309 of 2005
AGAINST THE ORDER DATED 14.12.2005 IN I.A.NO.1315/2005 AND 4941/2005 IN O.S.NO.592/2004 ON THE FILE OF THE PRINCIPAL SUB COURT,ERNAKULAM.
APPELLANT:PETITIONER:PLAINTIFF:
R.KEDARANATHAN, S/O.V.RAMANATHAN, SRILAKSHMI, POST VENNALA, KOCHI 28 EDAPPALLY SOUTH VILLAGE, NOW RESIDING AT XXX/101 B SAI BALA, ULLAS NAGAR, THEKKUMBHAGAM THRIPUNITHURA, NADAMA.
BY ADV. SMT. SUMATHI DANDAPANI
RESPONDENTS:RESPONDENTS 1 TO 3 & GARNISHEE:DEFENDANTS:
R2 BY ADV. S.ABDUL RAZZAK(CAVEATOR)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 21-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.T.SANKARAN & P.D.RAJAN, JJ.
----------------------------------------------------
F.A.O. NO.309 OF 2005
---------------------------------------------------Dated this the 21st day of November, 2014
JUDGMENT
K.T.Sankaran, J.
The Memorandum of First Appeal is filed by the plaintiff in O.S.No.592 of 2004 on the file of the Sub Court, Ernakulam challenging the order in I.A.Nos.1315 and 4941 of 2005 by which the court below vacated the order of attachment. The FAO was filed on 23.12.2005. The appeal was moved on the same day. There was caveat filed by the respondents. The Court directed notice to be given to the caveator and the appellant was given permission to move the appeal during Christmas holidays in 2005. Thereafter, nothing was done by the appellant. When the appeal came up for hearing on 18.11.2014, we directed the Registry to verify whether the suit is pending. It was reported that the suit was disposed of on 21.5.2008. The learned counsel for the appellant again sought time to verify as to whether the suit was decreed or dismissed. It is now submitted by the learned senior counsel appearing for the appellant that the plaint was rejected due to non-payment of balance court fee.
F.A.O. NO.309 OF 2005
:: 2 ::
As of now, the suit filed by the appellant is not in existence and the status quo as in 2005, at the time when the order impugned was passed, continues. The FAO has, therefore, become infructuous and it is, accordingly, dismissed as infructuous.
(K.T.SANKARAN) Judge
(P.D. RAJAN) Judge
ahz/
2 issues framed by the court
Whether the first appeal challenging the vacation of attachment order is maintainable when the underlying suit is no longer in existence.
Whether an appeal becomes infructuous if the original suit is disposed of after the filing of the appeal.
R.Kedaranathan
M/s.Top Constructions
T.Oommen Panicker
Smt.Santha Oommen Panicker
The Executive Engineer
K.T.Sankaran
P.D.Rajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
