Loading...

Sahadevan E.N. vs P.L.Antony on 8 July, 2008

Kerala High Court
Sahadevan E.N. vs P.L.Antony on 8 July, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 28110 of 2007(U)


1. SAHADEVAN E.N., AGED 44 YEARS,
                      ...  Petitioner

                        Vs



1. P.L.ANTONY, S/O. LONAPPAN,
                       ...       Respondent

2. SUJATHA T.K., AGED 32 YEARS,

                For Petitioner  :SRI.M.S.UNNIKRISHNAN

                For Respondent  :SRI.ABRAHAM P.GEORGE

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :08/07/2008

 O R D E R
                M. SASIDHARAN NAMBIAR, J.
                  ------------------------------------------
                  W.P(C). NO. 28110 OF 2007
                  ------------------------------------------
               Dated this the 8th day of July, 2008


                             JUDGMENT

Petitioner was not a party to O.S. 1566 of 2005 on the file

of Munsiff Court, Ernakulam. First respondent instituted that

suit against second respondent claiming Rs.1,00,000/- with

interest and costs contending that the amount was borrowed by

the defendant and a cheque was issued later for its repayment,

which was dishonoured. A petition for attachment before

judgment under Rule 5 of Order XXXVIII of Code of Civil

Procedure was filed. In the plaint in paragraph 3 the facts

stated in the application under Rule 5 of Order XXXVIII was

reiterated. The relief sought for is for realization of money

charged upon the assets of the second respondent including her

property which is scheduled in the plaint. An order of

attachment was originally granted. Second respondent was

directed to furnish security. That order was challenged before

the appellate court. The appellate court vacated the order of

attachment. Thereafter first petitioner filed two petitions; one to

implead petitioner herein as the transferer of the property from

second respondent and the other under Rule 17 of Order VI to

WPC28110/07 2

amend the plaint. The amendment sought for under Ext.P3

petition is to add a plea that petitioner is not a bona fide

purchaser and he purchased the property knowing that amount

is due to first respondent from the second respondent and a

declaration that alienation of the property in favour of first

respondent of the charged property is not valid. Under Ext.P2

order petitioner was impleaded as additional defendant. Under

Ext.P5 order the amendment petition was allowed. This petition

is filed under Article 227 of Constitution of India challenging the

said orders.

2. Learned counsel appearing for petitioner and first

respondent were heard.

3. As is clear from Ext.P4 the plaint in O.S. 1566 of

2005, suit is for realization of the amount from second

respondent to the first respondent which was allegedly

borrowed on 11.2.2004. As per the plaint allegation towards

repayment of the amount, a cheque was issued by the second

respondent which was subsequently dishonoured and a

complaint was filed under Section 138 of Negotiable

Instruments Act which ended in conviction and an appeal is

pending. There is no case in the plaint that the property of the

second respondent which was later purchased by the petitioner

WPC28110/07 3

was offered as security. Therefore first respondent cannot claim

that there is a charge in respect of the said property. Though

originally there was an order of attachment, that was later

vacated by the appellate court. In such circumstances learned

Munsiff was not justified in impleading the petitioner herein as

an additional defendant. When the suit is for realization of the

money and first respondent has no case that plaint schedule

property was either mortgaged or charged for the amount due

from second respondent first respondent is not entitled to

implead the assignee of the property of the second respondent

even if that assignment is not bonafide. In such circumstances

Ext.P2 order is quashed. Similarly when first respondent is not

entitled to get decree charged on the property owned by second

respondent, which was later assigned by second respondent to

the petitioner, learned Munsiff should not have allowed first

respondent to amend the plaint introducing the untenable plea .

Ext.P2 and P5 orders are therefore quashed. The petitions to

implead and amend the plaint stand dismissed.

Writ petition is disposed of as above.





                              M. SASIDHARAN NAMBIAR,
                                         JUDGE

WPC28110/07    4


Okb/-

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information