The High Court of Kerala allowed FAO No. 106/2020, setting aside the dismissal of an attachment before judgment application under Order XXI Rule 58 CPC, requiring the trial court to expedite the suit.
Attachment before judgment application restored and injunction application dismissed; suit disposed of within six months.
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 P.SOMARAJAN
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
FAO NO. 105 OF 2020
AGAINST THE ORDER DATED 08/10/2020 IN IA 1/2020 IN OS 17/2020 OF
SUB COURT, THIRUVALLA
APPELLANTS/PETITIONERS/PLAINTIFFS:
1 ABY K.JACOB, AGED 51,EX-GULF AND BUSINESS, S/O.LATE K.C.ABRAHAM, KARIMALATHU HOUSE, MADUMTHUMBHAGOM, KEEZHIKKARA MURI, PURAMATTOM VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. 2 MERINA K.ABY, AGED 48, HOMEMAKER AND STAGE CARRIAGE OPERATOR, W/O.ABY K.JACOB, KARIMALATHU HOUSE, MADUMTHUMBHAGOM, KEEZHIKKARA MURI, PURAMATTOM VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. BY ADVS.SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS
RESPONDENTS/RESPONDENTS/DEFENDANTS
1 CHACKO P.VARGHESE, AGED ABOUT 52, BUSINESS, S/O.LATE VARGHESE, KULATHUMURIYIL HOUSE, ERAVIPEROOR P.O., ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, NOW RESIDING AT CHERUKARA HOUSE, CHUMATHRA P.O., CHUMATHRA MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT-689 103.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20.10.2021, ALONG WITH FAO.106/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[FAO Nos.105/2020, 106/2020] 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
FAO NO. 106 OF 2020
AGAINST THE ORDER DATED 08/10/2020 IN IA 2/2020 IN OS 17/2020 OF SUB COURT, THIRUVALLA
APPELLANTS/PETITIONERS/PLAINTIFFS
1 ABY K.JACOB, AGED 51, EX-GULF AND BUSINESS, S/O LATE K.C.ABRAHAM, KARIMALATHU HOUSE, MADUMTHUMBHAGOM, THEKKEKARA MURI, PURAMATTOM VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT
2 MERINA K ABY, AGED 48, HOMEMAKER AND STAGE CARRIAGE OPERATOR, W/O ABY K .JACOB, KARIMALATHU HOUSE, MADUMTHUMBHAGOM, THEKKEKARA MURI, PURAMATTOM VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT
BY ADVS. CHERIAN GEE VARGHESE SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS
RESPONDENTS/RESPONDENTS/DEFENDANTS
1 CHACKO P.VARGHESE, AGED ABOUT 52, BUSINESS, S/O LATE VARGHSE, KULATHUMURIYIL HOUSE, ERAVIPEROOR P.O., ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, NOW RESIDING AT CHERUKARA HOUSE, CHUMATHRA P.O., CHUMATHRA MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRIT-689 103.
2 SHOBHANA KOSHY, AGED ABOUT 60, HOMEMAKER, W/O 1ST DEFENDANT, RESIDING AT
[FAO Nos.105/2020, 106/2020] 3
KULATHUMURIYIL HOUSE, ERAVIPEROOR P.O, ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, NOW RESIDING AT CHERUKARA HOUSE, CHUMATHRA P.O.CHUMATHRA MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT-689 103.
3 SRUTHI SUBASH, AGED ABOUT 30, W/O SUBASH, MELETHU PUTHENVEEDU, KAVIYOOR P.O.PADINJATTUMCHERRY MURI, KAVIYOOR VILLAGE, THIRUVALLA TALUK-689 103.
R1 BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20.10.2021, ALONG WITH FAO.105/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[FAO Nos.105/2020, 106/2020] 4
JUDGMENT
Two applications were maintained in I.A.No.1/2020 and 2/2020 in O.S.No.17/2020 by the plaintiffs for attachment before judgment and for temporary injunction. Both the applications were dismissed by the trial court, against which the
plaintiffs/petitioners came up.
[FAO Nos.105/2020, 106/2020] 5
coupled with any of the grounds enumerated under Order XXXVIII C.P.C., the court is not expected to conduct a roving enquiry causing prejudice to the
parties, except when there is a claim petition, which
has to be disposed of in accordance with the mandate under Order XXI Rule 58 C.P.C.. Hence, the dismissal
of attachment application cannot be sustained. The
same will stand set aside restoring the attachment before judgment over the property scheduled. It is
not at all necessary to pass any injunction order under Order XXXIX C.P.C. Hence, the dismissal of
the other application will stand confirmed.
In the result, F.A.O. No.106/2020 will stand
allowed and F.A.O.No.105/2020 will stand dismissed accordingly. The trial court shall expedite the disposal of the suit within six months from the date of receipt of a copy of this judgment.
Sd/-
P.SOMARAJAN
JUDGE
msp
2 issues framed by the court
Whether the dismissal of the application for attachment before judgment can be sustained given prima facie evidence supported by Order XXXVIII C.P.C.
Whether it is necessary to pass any injunction order under Order XXXIX C.P.C. in the instant case.
2 provisions across 1 enactments
ABY K.JACOB
MERINA K ABY
CHACKO P.VARGHESE
SHOBHANA KOSHY
SRUTHI SUBASH
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
