Review petition seeking review of an FAO dismissed as not maintainable concerning an attachment-before-judgment order. Relying on a Full Bench ruling that no appeal lies where no conditional attachment was ordered, the court found no apparent error and dismissed the review.
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1
RP 1301/2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946
RP NO. 1301 OF 2023
(AGAINST JUDGMENT DATED IN FAO NO.106 OF 2023 OF HIGH COURT OF KERALA)
REVIEW PETITIONERS/APPELLANT:
1 K.N. DINOOP, AGED 40 YEARS S/O. KUNHIKANNAN, MELVINA, PLOT 20, POLICE NAGAR, KIZHUTHALLI, THAZHE CHOVVA, KANNUR -, PIN - 670018
2 BEENA KARAYI ,AGED 50 YEARS W/O. MURALEEDHARAN, AGED 50 YEARS, VINAYAKA,, NEAR RAILWAY GATE, THAZHE CHOVVA, KANNUR -, PIN - 670018
BY ADVS. JAIKRISHNA R NARAYANI HARIKRISHNAN(K/000662/2014) AKHIL P.(K/415/2022) C.S.ARUN SHANKAR(K/361/2010) ANISH P.(K/000409/2020)
RESPONDENTS/RESPONDENTS:
OTHER PRESENT:
SRI. M.K SUMODH
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 20.12.2023, THE COURT ON 11.7.2024 PASSED THE FOLLOWING:
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RP 1301/2023
O R D E R
(Dated this the 11th day of July, 2024)
This Review Petition is filed by the petitioners to review the judgment in F.A.O.No.106/2023 dated 11.10.2023 of this Court. The F.A.O. was
filed against the order in I.A. No.1222/2019 in O.P.No.5/2019 in O.S. No.80/2022 on the file of the Sub Court, Kannur dated 15.05.2023. The impugned order was one passed under Order 38 Rule 5 of the Code of Civil Procedure. The F.A.O. was dismissed as not maintainable without prejudice to the right of the appellant, to challenge the impugned order in appropriate proceedings.
[2020 (5) KHC 461] has held in paragraph No.61 as follows:-
“Notwithstanding that in Pareed Master and Saseendran, elaborate legal reasons are not mentioned for entering a finding that Order XXXVIII R.6(2) of the Code cannot apply to a case where there was no conditional attachment of the whole or any portion of property or in other words, Order XXXVIII R.6(2) is not intended to cover cases in which defendant successfully showed
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RP 1301/2023
cause against attachment before judgment, in which no conditional attachment order under Order XXXVIII R.5(3) of the Code has been granted, we agree with the views taken in the decisions. We answer the reference affirming the views in Pareed Master and Saseendran.
We find that the appeal against the impugned order is not maintainable under Order XLIII R.1(q) of the Code since there was no order of conditional attachment passed by the court below to make it an order under Order XXXVIII R. 6(2) of the Code. Hence, the records shall be returned to the appellant and he may work out his remedy in a legally proper manner”.
Therefore, in view of the declaration of law by the Full Bench of this Court,
there is no error apparent on the face of the records.
Accordingly, the Review Petition is dismissed.
Sd/-
BASANT BALAJI, JUDGE
S.M.K./dl
1 issue framed by the court
Whether the review petition against dismissal of the FAO as not maintainable discloses any error apparent on the face of the record.
Colour shows how this judgement treated each authority
Sadasivan K. v. Surendradas [2020 (5) KHC 461]Relied on¶27
3 provisions across 1 enactments
K.N. Dinoop
Beena Karayi
Jamal Mohammed
Shubha
Shabana
Dinoop
Basant Balaji
As recorded by the court registry
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