Dismissed

Donald v. Menancy Joseph

Kerala HC14 Mar 2023FAO/153/2022

Case brief

AI extract

What is this about?

In FAO NO. 153 OF 2022, the High Court of Kerala dismissed an appeal filed by defendants against an order converting an attachment before judgment to absolute under Order 38 Rule 5 CPC. The appellant argued the attachment ignored an existing bank mortgage, but the Court ruled the appellant could not step into the creditor's shoes to challenge the attachment.

What did the court decide?

The appeal is dismissed; the order of attachment stands; parties are at liberty to explore settlement.

Donald Vs Menancy Joseph — Execution and Attachment | Kerala HC (2023)

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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 P.SOMARAJAN

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TUESDAY, THE 14TH DAY OF MARCH 2023 / 23RD PHALGUNA, 1944

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FAO NO. 153 OF 2022

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AGAINST THE ORDER IN I.A.NO.1/2021 IN O.S.NO.44/2021 DATED
22.11.2022 OF ADDITIONAL SUB COURT,KOLLAM

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APPELLANTS/RESPONDENTS IN I.A/DEFENDANTS IN O.S:

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1DONALD,S/O BENEDICT,
AGED 48 YEARS,
BIJU BHAVAN,
TRIKKOVILVATTAM VILLAGE,
MUKHATHALA P.O,
KOLLAM- 691 577
2MINI, D/O DOUGLES,
AGED 41 YEARS,
PANAVILA VEEDU,
MAYYANAD VILLAGE ,
MAYYANAD P.O,
KOLLAM – 691 303
BY ADVS.
M.AJITH (KARICODE)
R.MOHANA BABU

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RESPONDENT/PETITIONER IN I.A/PLAINTIFF IN O.S:

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MENANCY JOSEPH,
AGED 59 YEARS,
D/O BENEDICT,
KULAPURAYIDAM HELEN DALE,
VADAKKUMBHAGAM,
ERAVIPURAM VILLAGE,
KOLLAM – 691 011

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BY ADVS.
T.THASMI
DILEEP S
KRISHNAPRIYA G
ATHIRA A.MENON

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON
14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO NO. 153 OF 2022

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JUDGMENT

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 The defendant/counter-petitioner came up

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against the order of attachment before judgment
under Order 38 of Rule 5 CPC, which was made

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absolute subsequently. The ground raised by the
defendant is that the property was mortgaged to a

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bank and the attachment was made without
disclosing and without taking into consideration
the outstanding liability over the property. Even

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if it is found that there is an outstanding
liability over the property, the defendant cannot
step into the shoes of any such creditor and
cannot maintain an application under Order 21 Rule
58 CPC or under Rule 8 of Order 38 CPC. Hence, the
order of attachment, which was made absolute by
the trial court, deserves no interference at the

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instance of the defendant in this case, the
appellant. The appeal fails, dismissed. The

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FAO NO. 153 OF 2022

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parties are at liberty to explore the possibility

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of a settlement in the matter.

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 Sd/-

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P.SOMARAJAN

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JUDGE

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rkr-14/03/23

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FAO NO. 153 OF 2022

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APPENDIX OF FAO 153/2022

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PETITIONER ANNEXURES
Annexure ATRUE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 03/9/2022 OF KANNANALLOOR SRO RELATING
TO THE PROPERTY ATTACHED IN THE CASE AND
MORTGAGED TO MAYYANAD REGIONAL COOPERATIVE
BANK

Donald v. Menancy Joseph

Case brief

What is this about?

What did the court decide?

Donald v. Menancy Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

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