Allowed

G.S.Baby Thamkam v. P.P.Jose

Kerala HC6 Jan 2016FAO/91/2015

Case brief

AI extract

What is this about?

The appellant, in a suit for recovery of money, sought attachment of property before judgment. A conditional attachment was granted initially, but subsequently lifted for part of the properties. The appellant challenged the lifting of attachment, arguing the remaining property value was insufficient to satisfy the decree. The High Court allowed the appeal, set aside the impugned order, and remande

What did the court decide?

Impugned order lifted from attachment is set aside. Matter remitted to the court below for fresh consideration within 3 months considering appellant's contentions.

G.S.Baby Thamkam Vs P.P.Jose — Property and Title | Kerala HC (2016)

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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 ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937

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FAO.No. 91 of 2015 ()

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AGAINST THE ORDER IN I.A.NO.979/14 IN OS 20/2014 of SUB COURT, NEDUMANGAD DATED 25-02-2015

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APPELLANT(S)/PETITIONER/PLAINTIFF:

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G.S.BABY THAMKAM, AGED 53 YEARS W/O GOPALAN, MANGALASSERY PUTHEN VEEDU, GANDHIPURAM SREEKARIYAM, PANGAPPARA, THIRUVANANTHAPURAM.

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BY ADVS.SRI.JOSEPH SEBASTIAN (KOLLAM) SRI.LIJU. M.P

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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1. P.P.JOSE, AGED 48 YEARS S/O PUTHURA POULOSE, NANDANAM, TC NO.77/305 ITI JUNCTION, CHAKKA, KADAKAMPALLY THIRUVANANTHAPURAM-695029.

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2. MERY MAMPALLY

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W/O JOSE, NANDANAM, TC NO.77/305 ITI JUNCTION, CHAKKA, KADAKAMPALLY THIRUVANANTHAPURAM-695029.

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R1&2 BY ADV. SMT.P.M.NASEEMA

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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ANTONY DOMINIC, J. & A.HARIPRASAD, J.

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F.A.O.No.91 of 2015

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Dated this the 6^th day of January, 2016.

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J U D G M E N T

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A.Hariprasad, J.

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The appellant is the petitioner in I.A.No.979/14 in O.S.No.20/14 before the Sub court, Nedumangad. She is the plaintiff in the suit. The suit is one for recovery of money. Along with the suit, the above application for attachment before judgment under Order 38 Rule 5 of CPC was filed. The court below passed an order allowing a conditional attachment over two items of properties scheduled to the petition. Later, attachment order in respect of item no.2 was lifted by the impugned order. The appellant would contend that the plaint claim will not be satisfied by sale of item no.1 alone, as the value of item no.1 is insufficient to satisfy the decree that is likely to be passed in the suit.

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F.A.O.No.91 of 2015

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Even though notice was served on the respondents, they did not appear and contest.

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We heard the learned counsel for the appellant. We perused the records. The court below relied on a valuation report submitted by the Tahsildar showing the value of item no.1 in the petition schedule as Rs.1,67,00,000/-. The learned counsel for the appellant submitted that the valuation report is totally incorrect and inflated. Appellant had filed complaint before the appropriate authority against the author of the Certificate and the matter is pending consideration. However, the court below cannot be faulted in relying on the valuation Certificate, as there was no material before the court below to brush it aside. The learned counsel for the petitioner, relying on a document bearing No.1050/14 of Vamanapuram SRO executed by the respondent/defendant in favour of his wife, has contended that even according to the respondent's own showing, the value of the property in dispute is much less than the

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F.A.O.No.91 of 2015

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amount shown in the valuation Certificate issued by the Tahsildar. It is therefore contended that the appellant will be able to convince the court below that the valuation adopted by the Tahsildar in the Certificate is totally erroneous. The apprehension of the appellant is that if the attachment over item no.2 is lifted, the suit claim will be defeated.

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This Court as per order dated 20.5.2015 in I.A.No.474/15 stayed the operation of the impugned order and the stay order had been extended until further orders. It remains in force. Considering the entire facts and circumstances, we are of the view that, the appellant should be given an opportunity to adduce evidence to substantiate his contentions, including the unacceptability of the valuation Certificate. Therefore, the matter is remanded back to the court below for a fresh consideration.

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In the result, this appeal is allowed and the impugned order is set aside. The matter is remitted back. The court

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F.A.O.No.91 of 2015

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below is directed to reconsider the matter within a period of 3 months from today. Till the disposal of the matter by the

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court below, the order passed by this Court on I.A.No.474/15

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will remain in force.

Sd/-

ANTONY DOMINIC,

JUDGE.

Sd/-

A.HARIPRASAD, JUDGE.

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ami/6/1/16

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//True copy//

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P.A. to Judge

G.S.Baby Thamkam v. P.P.Jose

Case brief

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G.S.Baby Thamkam v. P.P.Jose

Case brief

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