Disposed

M/S. Peevees Enterprises v. a. Aliyar Kunju

Kerala HC1 Mar 2018OP(C)/424/2018

Case brief

AI extract

What is this about?

High Court order in Original Petition (Civil) seeking directions to lift attachment based on a withdrawn suit. Subordinate Court reported records missing and parties inconsistent. Court directed parties to identify correct case numbers and disposed of petition without granting relief.

What did the court decide?

The prayer in the Original Petition to lift attachment could not be acceded to. The petition was finally disposed of pending further representation by petitioners to identify the correct case numbers.

M/S. Peevees Enterprises Vs a. Aliyar Kunju — Civil Procedure and Limitation | Kerala HC (2018)

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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 ALEXANDER THOMAS

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THURSDAY, THE 1ST DAY OF MARCH 2018 / 10TH PHALGUNA, 1939

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OP(C).No. 424 of 2018 --------------------OS 118/97 OF SUB COURT, TRIVANDRUM

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----------

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PETITIONER(S)

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1 M/S. PEEVEES ENTERPRISES, P.B NO.914, EDACOCHIN, COCHIN.682006, REP. BY MANAGING PARTNER SRI. M.V MAHMOOD.

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2 M.V MAHAMOOD, AGED 60, S/O P.V IBRAHIM, 44/2286B, EBUS NEST, ELLIPARAMBIL LANE, ASHOKA ROAD, KALOOR, KOCHI.682017.

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BY ADVS.SRI.JOHNSON MANAYANI SRI.JEEVAN MATHEW MANAYANI

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RESPONDENT:

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A.ALIYAR KUNJU, T.C 37/275, PADMATHEERTHAM STREET, FORT VANCHIYYOR VILLAGE, TRIVANDRUM. 695036.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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OP(C).No. 424 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 THE TRUE COPY OF THE WITHDRAWAL APPLICATION FILED BY THE RESPONDENT BEFORE THE SUB COURT, TRIVANDRUM DATED 9.6.1997 IN OP(INDIGENT) OS NO.118/1997. EXHIBIT P2 THE TRUE COPY OF THE NON ENCUMBRANCE CERTIFICATE OF THE PETITIONERS PROPERTIES ISSUED BY S.R.O, KOCHI. EXHIBIT P3 THE TRUE COPY OF THE PETITIONERS PETITION TO LIFT THE ATTACHMENT FILED UNDER SECTION 151 OF THE C.P.C

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RESPONDENTS EXHIBITS: NIL

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/TRUE COPY/

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K.V. P.S.TO JUDGE 8.03.2018

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ALEXANDER THOMAS, J.

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Dated this the 1st day of March, 2018.

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J U D G M E N T

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The prayers in this Original Petition (Civil) filed under the enabling provisions in Article 227 of the Constitution of India are as follows:

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“I. Issue appropriate direction or orders to accept Exhibit P3, by the Sub Court, Trivandrum and to lift the attachment in view to Exhibit P1.

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II. Declare that, the Sub Court, Trivandrum is liable to accept the Exhibit P-3 petition and to lift the attachment in view to Exhibit P1.”

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Heard Sri.Johnson Manayani, learned counsel for the

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petitioners. In the nature of the orders proposed to be passed in this petition, notice to the respondent will stand dispensed with.

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Petitioners would state that they were the defendants in O.P(Indigent) O.S.No.118/1997 on the file of the Sub Court, Thiruvananthapuram. That the said suit was withdrawn by filing Ext.P-1 withdrawal application in the said suit by the plaintiff. Pursuant to Ext.P1 withdrawal application, the suit was dismissed as withdrawn as per order dated 9.6.1997. The court below had issued earlier an attachment order at the instance of the plaintiff as evident from serial No.5 of Ext.P-2 encumbrance certificate issued by the Registration Department of the State

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O.P(C).No.424 Of 2018

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Government. That even after the withdrawal of the suit, no orders were formally passed by the trial court lifting the attachment and intimation in that regard was never conveyed by the trial court to the S.R.O concerned so as to delete the encumbrance, it is stated. That thereupon, the petitioners had attempted to file Ext.P-3 application on 17.9.2017 praying to advance his prayer to lift the attachment of Ext.P-3 property by the said trial court and its due communication to the S.R.O concerned so as to delete the encumbrance noted in Ext.P-2, etc. That the court officials of the Sub Court, Thiruvananthapuram, do not accept Ext.P-3 presumably on the ground that the case records in relation to the suit, which was disposed of long ago, are not immediately traceable, etc., it is alleged.

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This Court has passed order dated 14.2.2018, whereby the Registry was requested to call for a report from the Court of Subordinate Judge, Thiruvananthapuram, about the various aspects of the matter, and the said order reads as follows:

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“It is submitted by the petitioner that the Sub Court, Thiruvananthapuram, had dismissed Original Petition, O.P.(Indigent) O.S.No. 118/1997 as early as on 9.6.1997 and that attachment order earlier issued in the suit was not formally lifted by the trial court, which created difficulties for the petitioners/defendants. That thereupon the petitioners had filed Ext.P-3 application to lift the attachment, etc. and that the trial court is not accepting Ext.P-3 application on the ground that the original files in relation to the original suit are not traceable, etc.

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The Registry will get a report from the Sub Court, Thiruvananthapuram as to whether the original records in O.P.(Indigent)

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O.P(C).No.424 Of 2018

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O.S.No.118/1997 are available or are missing and the steps that may be taken by the court below for consideration of the application of the petitioner for issuance of formal orders of attachment. The report in this regard shall be made available by the said trial court within four days.”

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Pursuant to the said direction, the Subordinate Judge, Thiruvananthapuram, has now furnished a report dated 20.2.2018, wherein it is inter alia stated that in compliance with this Court's direction, the learned trial judge was requested to trace the original case files and records in relation to O.P.(Indigent).No.118/1997 and it is stated that the suit is one for realisation of money and for other connected reliefs and it was decreed and that cause title reveals that the suit was filed by one Sirajudeen as plaintiff against the defendant therein one Soman, and later one Thressiyamma was added as additional defendant in the said suit as per order on I.A.No.3009/1998. However, the original records do not reveal that the petitioners in this Original Petition, viz., M/s.Peevees Enterprises and Sri.M.V.Mahamood have filed any application for lifting the attachment at any point of time in O.S.No.118/1997 on the file of the Principal Sub Court, Thiruvananthapuram and from the records, it is seen that nobody has filed any application for lifting the attachment till date in this case. Further that, in the present Original Petition it is shown that the respondent is Aliyar Kunju, T.C.35/275, Padmatheertham Street, Fort Vanchiyyor Village, Thiruvananthapuram, but that in the said suit neither

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O.P(C).No.424 Of 2018

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the respondent herein Sri.Aliyar Kunju, nor the petitioners herein are parties to the said suit. Further it is stated in the said report that no application is filed by either by Aliyar Kunju or by M.V.Mahamood or by other person before the Sub Court, etc. In the light of these aspects, it is not right and proper for this Court to proceed further with the consideration of this Original Petition.

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Sri.Johnson Manayani, learned counsel for the petitioners, submits that presumably there may be some mistake in the mentioning of the number of the O.P(Indigent) and Original Suit. As per the averments in the present Original Petition, Serial No.5 of Ext.P-2 encumbrance certificate given on page 8 of Original Petition, speaks about No.118 of 1996 with respect to the property of the Aliyar Kunju, Padmatheertham Street, and that petitioners will make enquiries about the same. Further it is stated therein as can be seen from page 9 of the Original Petition that the said attachment is in relation to an order passed by the Sub Court, Thiruvananthapuram in which M/s.Peevees Enterprises, is the defendant.

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In these circumstances, it is ordered that the court below will permit the authorised representative/authorised counsel of the petitioners herein to make some efforts by way of enquiries with the court officials of the Sub Court, Thiruvananthapuram, so as to aid their attempt to identify the correct number of the O.P(Indigent) as well as the Original Suit, in

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O.P(C).No.424 Of 2018

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which serial No.5 of Ext.P-2 relates and if such an attempt is made by the authorized counsel of the petitioners, then the officials of the court below concerned will extend necessary co-operation and furnish necessary information as may be possible under the circumstances to ensure that necessary assistance is provided to the petitioners in their attempt to identify the correct case number. The petitioners may make a necessary representation in that regard on the administrative side, based on Ext.P-2 before the court below concerned and reasonable attempts may be made by the officials of the court below concerned to ascertain the facts to the extent possible. It is hoped and expected that the petitioners should not make unreasonable demands under the guise of the above said directions. A certified copy of this judgment will be forwarded to the Sub Court, Thiruvananthapuram. In the light of the above said aspects, the prayer in the present Original Petition cannot be acceded to as of now.

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With these observations and directions, the above Original Petition (Civil) will stand finally disposed of.

Sd/-

ALEXANDER THOMAS,

Bkn/-

// True copy //

P.A to Judge.

M/S. Peevees Enterprises v. a. Aliyar Kunju

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M/S. Peevees Enterprises v. a. Aliyar Kunju

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