IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 30574 of 2007(M)
1. POOCHINGAL HAMZA, S/O KUNHAVA,
... Petitioner
2. ARAKKAL MUHAMMED, S/O ABDUL RAHIMAN,
Vs
1. PUTHUKULANGARA MUSTHAFA,
... Respondent
2. KANKADAKKADAVAN MOIDEENKUTTY HAJI,
For Petitioner :SRI.K.DIVAKARAN NAIR
For Respondent :SRI.K.RAMACHANDRAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/02/2008
O R D E R
M.N.KRISHNAN, J.
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W.P.(C). NO. 30574 OF 2007
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Dated this the 7thday of February, 2008
JUDGMENT
This writ petition is preferred against the order of the
Subordinate Judge, in IA 1660/07 in OS 117/07.
2. The said suit is filed by the plaintiffs for return of the
advance money. The total amount claimed is Rs.3,09,025/- . Along
with the suit, an application for attachment was filed and there was
an interim conditional attachment. Thereafter, the defendants in the
suit moved an application for raising the attachment by offering
security in the form of an undertaking and a bond executed by
another person, who is the owner of other property. The said person
is none other than the brother of the defendants. It is submitted that
the said property was obtained by him under document No. 307/85.
It is also seen from the court order that original title and
encumbrance certificate are produced. The present writ petitioners
were not happy with the version submitted by the Amin, who had
valued the property at Rs.40 lakhs. The court below accepted the
Amin’s report and held that there is sufficient security and therefore
ordered raising attachment of the property.
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3. Learned counsel for the petitioners Sri. Divakaran Nair
would contend that the approach made by the court is totally
erroneous and there is no basis for valuing property at Rs.40 lakhs.
Further there is a statutory charge under Section 55(6) of the
Transfer of Property Act and therefore the court should not have
lifted the attachment as well. Section 55(6) imposes certain
conditions to confer a charge on the property. That cannot be
decided at a preliminary stage. The plaintiffs have come forward with
the suit for realisation of the advance money and seek protection in
the form of security to ensure realisation in case he succeeds. Since
the writ petitioner is totally dissatisfied with the report of the Amin, I
feel in order to safe guard the interest of the plaintiffs in the suit
direction may be given to produce the valuation certificate issued by
the Tahsildar so that the court can act upon the same and find out
whether the said security furnished will be sufficient. On a
compliance of the said terms certainly the court is entitled to enter
into a finding regarding sufficiency of the security and raise the
attachment. The question of statutory charge under Section 55(6)
etc. is left vide open.
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4. So the order under challenge is set aside and the court
below is directed to give a direction to the defendants in the suit to
produce the valuation certificate within a very reasonable time and
after hearing the plaintiffs in the matter pass appropriate orders in
accordance with law. There is an apprehension for the learned
counsel for the defendants that on account of these orders neither
they are able to deal with their property nor their brother is able to
deal with the property. The urgency of the matter may be taken into
consideration and expeditious orders may be passed in accordance
with law.
The writ petition is disposed of accordingly.
M.N.KRISHNAN, JUDGE
vps
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