IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ex FA No. 25 of 2006()
1. SAHADEVAN, AGED 62 YEARS,
... Petitioner
2. CHINSHA, AGED 19 YEARS,
Vs
1. SASIDHARAN V.P.,
... Respondent
2. RADHAMMA, R.S.BHAVAN,
For Petitioner :SRI.M.V.THAMBAN
For Respondent :SRI.RAM MOHAN.G.
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice K.T.SANKARAN
Dated :27/03/2007
O R D E R
KURIAN JOSEPH & K.T. SANKARAN, JJ.
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Ex.F.A. No. 25 OF 2006
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Dated this the 27th March, 2007
J U D G M E N T
Sankaran, J:
Claim petitioners in I.A. 2976 of 2004, whose application under
Order XXXVIII Rule 5 of Code of Civil Procedure (wrongly mentioned as
Order XXI Rule 58 Code of Civil Procedure) was dismissed are appellants.
The first respondent herein filed the suit, O.S. No. 259 of 2003, against
the second respondent for realisation of money. Plaintiff filed I.A. 2571 of
2003 along with the suit for attachment before judgment . Defendant
accepted the notice and appeared in the case. On 21.07.2003, an
undertaking was filed by the defendant stating that she will not alienate
the property. Attachment was not ordered in view of the undertaking made
Ex.F.A. No. 25 OF 2006
2
by the defendant. Later, as per the order dated 09.06.2004, the property
was attached as the defendant failed to furnish security as ordered by the
court.
2. Appellant No.1 is the husband of the defendant and appellant
No.2 is the son of the defendant . They claim title under a settlement deed
dated 02.06.2004 executed by the defendant in the F.A.O. The court
below held that this settlement deed was executed after the undertaking
was made by the defendant on 21.07.2003. Therefore the settlement
deed is not valid and binding on the plaintiff . Claim petition was therefore
rejected.
3. Appellants have produced certain documents as per I.A. 2035
of 2006. The contention of the appellants is that the property originally
belonged to one Kamalasanan who executed an assignment deed in
favour of appellant No.1, the defendant and one Sukumarapilla as per
document No. 4070 of 1981 . Later, as per document No. 1655 of 1985,
Sukumarapilla assigned his rights in favour of appellant No.1 and the
Ex.F.A. No. 25 OF 2006
3
defendant . Thus, the appellants contended that de hors the settlement
deed executed by the defendant, appellant No.1 has right over the property
which was attached. The court below, according to the counsel for the
appellant, did not advert to these contentions nor did the court below
advert to the evidence placed before it. The Appendix of the order of the
court below does not show that evidence was adduced in the case But
paragraph ‘3’ of the order would indicate that witnesses were examined.
There is no discussion of the evidence of the witnesses in the order. The
contentions put forward by the parties are also not properly considered
by the court below . Therefore, we are of the view that the court below
should be directed to consider the matter afresh after affording an
opportunity of being heard to both parties and to adduce evidence and to
produce documents.
In the result, the order dated 21.03.2006 in I.A. 2976 of 2004 is set
aside and the matter is remanded to the court below for fresh disposal
after affording an opportunity of being heard to both the parties and to
adduce evidence and to produce documents . The order of attachment
Ex.F.A. No. 25 OF 2006
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will continue to be in operation till a decision is taken in I.A. 2976 of 2004.
The question as to whether the order of attachment should be continued or
not will be subject to the order to be passed by the court below . The
parties shall appear before the court below on 30.05.2007.
KURIAN JOSEPH,
JUDGE.
K.T. SANKARAN,
JUDGE.
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