Dismissed

K. John v. John Joseph

Kerala HC20 Jan 2020OP(C)/7/2020

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an original petition seeking attachment of defendant's properties. The court found the petition unnecessary as the underlying suit was listed for trial and defendants were in possession of valuable properties without indication of attempting to sell them.

What did the court decide?

Original petition dismiss ed with costs to the counter-petitioner (though court later noted without passing order on costs).

K. John Vs John Joseph — Execution and Attachment | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941

¶5

OP(C).No.7 OF 2020

¶6

IN OS 93/2013 DATED 09-12-2019 OF SUB COURT, PATHANAMTHITTA

¶7

PETITIONER/1ST PLAINTIFF:

¶8

K. JOHN AGED 68 YEARS S/O.LATE K.G.JOSEPH, MAMMUTTIL ESTATE, OTTUPARA.P.O, KONNI, PIN-689691 NOW RESIDING AT 9-B2 CONDOR DAFFODILS, KURAVANKONAM, KOWDIAR.P.O, THIRUVANANTHAPURAM

¶9

BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.LATHEESH SEBASTIAN

¶10

RESPONDENT/DEFENDANT:

¶11

JOHN JOSEPH AGED 73 YEARS S/O.JOSEPH, VADAKKADATHU HOUSE, KALLELY.P.O, ARUVAPPULAM VILLAGE, PATHANAMTHITTA, PIN-689691 NOW RESIDING AT SRI.JOHN JOSEPH, S/O.LATE JOSEPH, VADAKKEDATHU HOUSE, VADAVATHOOR.P.O., KALATHIPADI, NATTASSERI MURI, VIJAYAPURAM VILLAGE, KOTTAYAM DIST., PIN-686010

¶12

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶13

OP(C).No.7 OF 2020

¶14

¶15

J U D G M E N T

¶16

This petition has been filed by the plaintiffs in O.S.No.93/2013 impugning Ext.P8 order of the Sub Court, Pathanamthitta, as per which, their application under Order XXXVIII Rule 5 of the Code of Civil Procedure Code (CPC for short) for attachment of the properties of the 2^nd defendant has been rejected.

¶17

According to the petitioner, the property was earlier attached conditionally, but that the Suit was subsequently dismissed for default on 13.06.2018, leading to the attachment order being withdrawn on 14.06.2018. They say that the Suit was, thereafter, restored to file on the orders of this Court and that they then received reliable information from a particular person, who is a neighbour of the 2^nd defendant, that he is attempting to sell the property, thereby to frustrate the decree that he may obtain in the Suit in question. The petitioner says that the court below, however, rejected the application, presumably being swayed by the fact that the plaint claim is only Rs.1,05,000/- and that the learned Advocate Commissioner had not quantified any

¶18

OP(C).No.7 OF 2020

¶19

¶20

specific amount as damages in his report. The petitioner asserts that these findings in the order virtually pre-judge the issues in the Suit and therefore, that it be set aside and the attachment, as prayed for, be allowed.

¶21

I have heard Sri.S.V.Balakrishna Iyer, learned Senior Counsel, instructed by Sri.Latheesh Sebastian, learned counsel for the petitioners and B.G.Harindranath, learned counsel appearing for the respondents.

¶22

I have examined the order impugned in this original petition and it is clear that the findings of the court below, while dismissing the application, are available in paragraphs 11 and 12 thereof, which reads as under.

¶23

“11. It is to be noted that as per the order in I.A.580/2017 in O.S.No.93/2013 the property sought to be attached in the present petition was earlier attached conditionally. Thereafter, O.S.No.93/2013 was dismissed for default on 13.6.2018 and the attachment order was withdrawn on 14.06.2018. After restoring the suit the present petition has been filed. In I.A.No. 580/2017 it is seen noted that the petitioner got reliable information from one Mr.Baby, Vadakkedathu House, Aruvappulam Village, next door neighbor of the 1^st defendant, that the 2^nd defendant is in preparation of selling his entire properties at

¶24

OP(C).No.7 OF 2020

¶25

¶26

Aruvappulam Village and he has informed the petitioner that the 2^nd defendant is measuring his land at Aruvappulam Village with a surveyor on 30.09.2017 as a preparation to dispose the same forthwith. It is interesting to note that the same fact is seen reiterated in the present petition also. The only exception is that there is a change in respect of the person who gave information and the date on which surveyor measured out the property.

¶27

The commission report reveals that the commissioner has not properly identified the plaint schedule property. Moreover the suit has been instituted for realizing an amount of Rs.1,05,000/- as damage for the loss sustained to the plaintiff by cutting and removing three teak trees from the plaint schedule properly. It is evident from the commission report that only two teak trees were felled and removed and that too years back. The commissioner has not quantified any amount as damage in the report. Prima facie there is nothing material on record to prove the loss sustained to the petitioner. The petition lacks bonafide. It is devoid of merits and is liable to be dismissed. According petition is dismissed with costs to the counter-petitioner.”

¶28

I am today told by the learned counsel for the parties

¶29

that the Suit is now listed for trial on 21.01.2020, and that a time frame has also been fixed by this Court to complete it in O.P. (C).No.1225/2019, within which time, the Suit is to be tried and

¶30

OP(C).No.7 OF 2020

¶31

¶32

disposed of finally.

¶33

That being so and since the plaint claim is only Rs.1,05,000/- and because the defendants are concededly in possession of valuable properties, which their learned counsel Sri.B.G.Harindranath affirms are not being attempted to be sold at least until the Suit is disposed, I do not deem it necessary to entertain this original petition any further.

¶34

Consequently, I dismiss this original petition, finding it to be of no consequence, particularly because the Suit is now posted for trial on 21.01.2020; however, without making any order as to costs.

¶35

SD/-

¶36

DEVAN RAMACHANDRAN

¶37

JUDGE

¶38

¶39

OP(C).No.7 OF 2020

¶40

¶41

APPENDIX OF OP(C) 7/2020

¶42

PETITIONER'S/S EXHIBITS:

¶43

EXHIBIT P1	TRUE COPY OF THE AMENDED PLAINT IN O.S.NO.93/2013 DT 04.04.2013 AND RE-FILED ON 01.06.2018
EXHIBIT P2	TRUE COPY OF THE PETITION IN IA 580/2017 IN O.S.NO.93/2013 DT.04.10.2017
EXHIBIT P3	TRUE COPY OF THE ORDER IN IA 580/2017 IN O.S.93/2013 DT.13.4.2018
EXHIBIT P4	TRUE COPY OF THE ATTACHMENT ORDER IN 580/2017 IN O.S.93/13 EXECUTED DT 08.05.2018
EXHIBIT P5	TRUE COPY THE ORDER IN IA NO.360/2018 IN OS NO.34/2016 DT.14.06.2018
EXHIBIT P6	TRUE COPY OF THE IA NO.700/2019 IN O.S.NO.93/2013 DT 28.10.2019
EXHIBIT P7	TRUE COPY OF IA NO.796/2019 IN O.S. NO.93/2013 DT.27.11.2019 ALONG WITH THE SCHEDULE
EXHIBIT P8	TRUE COPY OF THE ORDER IN IA NO.796/2019 IN O.S.NO.93/2013 DT.09.12.2019

¶44

OP(C).No.7 OF 2020

¶45

K. John v. John Joseph

Case brief

What is this about?

What did the court decide?

K. John v. John Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

P.M.Joy Vs P.v.Johny

Bincy Jose, Vs Muhammad Sabir

Jayaprakash Vs Thankamma

M.K.Chellappan Vs P.N.Prasad

Kavitha K Karunakaran Vs Girijakumari Ayyappan

K.N.Prasad, Vs P.R.Gigi