G.Maghesh Babu vs N.Subaida Beevi on 23 May, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 110 of 2008()


1. G.MAGHESH BABU, AGED 30 YEARS,
                      ...  Petitioner

                        Vs



1. N.SUBAIDA BEEVI, AGED 49 YEARS,
                       ...       Respondent

                For Petitioner  :SRI.K.P.SUJESH KUMAR

                For Respondent  :SRI.G.S.REGHUNATH

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :23/05/2008

 O R D E R
                                P.R. RAMAN &
                     T.R. RAMACHANDRAN NAIR, JJ.
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                           F.A.O. NO. 110 OF 2008
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              DATED THIS, THE 23RD DAY OF MAY, 2008.

                                J U D G M E N T

Raman, J.

This is an appeal against the order passed by the II Additional Sub

Court, lifting the attachment earlier granted. The appellant herein is the

plaintiff in a suit for specific performance. According to him, an amount of

Rs. 3,00,000/- (three lakhs) was paid by way of advance to the defendant.

Though the plaintiff was ready and willing, the defendant was not ready and

willing to perform his part of the obligation by executing the sale deed and

hence the suit was filed. The contention raised in the plaint is denied in the

written statement. As a matter of fact, according to the defendant, she is

still ready and willing to perform her part of the contract and requested the

court to fix a date. But the plaintiff was not willing. Anyway, these are all

matters which the court below has to adjudicate in the suit after taking

evidence. However, it cannot be said that the balance of convenience is in

favour of the plaintiff to grant an attachment as prayed for. As a matter of

fact, the court below, had granted an attachment earlier and only

subsequently, it was vacated after appreciating the contentions and after

F.A.O. 110/2008 :2:

considering the balance of convenience. Further, the plaintiff, being an

unpaid vendor, has got a statutory charge for the amount to be repaid. In

such circumstances, we do not think this is a fit case for interference by this

Court. However, we make it clear that whatever observations made by the

court below can only be for the purpose of considering the interim prayer

for attachment and it will not affect the final verdict in the suit.

Untrammelled by any such observation, the court below shall dispose of

the matter based on the evidence let in by the parties.

The appeal is disposed of as above.

P.R. RAMAN,
(JUDGE)

T.R. RAMACHANDRAN NAIR,
(JUDGE)

knc/-