IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37735 of 2009(O)
1. SUBIN BABY, S/O VARGHESE,
... Petitioner
Vs
1. ABRAHAM, S/O PAVU,
... Respondent
2. ANNAM, W/O ABRAHAM,
3. PAUL ABRAHAM, S/O ABRAHAM,
4. JAMES, S/O ABRAHAM,
5. KUNJAMMA, D/O ABRAHAM,
For Petitioner :SRI.RAJESH VIJAYAN
For Respondent :SRI.R.D.SHENOY (SR.)
The Hon'ble MR. Justice P.BHAVADASAN
Dated :03/03/2010
O R D E R
P.BHAVADASAN, J.
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WP(C) No.37735 of 2009
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Dated 3rd March 2010
Judgment
This is a Petition filed under Article 227 of the
Constitution, calling in question, Exts.P6 and P7 orders.
2. The petitioner is the plaintiff in OS No.42/09,
which is a suit for return of advance money paid to the
defendant. It is alleged that there was an agreement of
sale dated 12.06.2008, agreeing to sell the plaint schedule
property for a sum of Rs.31,000/- per cent. It is claimed
that a sum of Rs.25 lakhs was paid as advance. The
defendant committed default in the performance of the
agreement. For return of the advance money, the suit was
laid. The suit was decreed. Along with the suit, the
petitioner had filed IA No.362/09 for interim attachment of
the plaint schedule property and an interim attachment was
ordered. The defendants entered appearance and filed IA
No.1320/09 under Order XXXVIII Rule 9 to release the
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attachment of the plaint schedule property and to accept
another property as security in the place of the property
now attached.
3. The Court below, by Ext.P7, allowed the said
IA. In view of the order in that IA, the order of attachment
was raised and the property offered by the defendants as
security was attached. Aggrieved petitioner has filed this
Writ Petition, challenging Exts.P6 and P7.
4. No prejudice is caused to the petitioner by the
substitution of the property in attachment. Apart from that,
there is a statutory charge on the property by virtue of S.55
(6)(b) of the Transfer of Property Act. The grievance raised
by the petitioner is more of imaginary than real. The Court
below cannot be found fault with in allowing the defendants
to substitute the security when there is no allegation
of insufficiency. No grounds are made out warranting
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interference with the order of the Court below and the Writ
Petition is dismissed.
P.BHAVADASAN, JUDGE
sta
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