IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 OP(C).No. 2368 of 2011(O) ----------------------------------- OS.239/2010 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER -------------------- M.J.SEBASTIAN, S/O.ULLAHANAN, NAVANKULANGARAYIL, THALAYOLAPPARAMBU.P.O., THALAYOLAPPARAMBU, KOTTAYAM DISTRICT. PIN-686 605. BY ADV. SRI.M.P.RAMNATH RESPONDENT(S): --------------------------- 1. SHAJI JOSEPH, AGED ABOUT 36 YEARS, S/O.JOSEPH, ARACKAL HOUSE, KULAYATILKARA.P.O., PIN-682 315, KULAYATTIKKARA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 2. THE SUB REGISTRAR, SUB REGISTRARS OFFICE, MULANTHURUTHY, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.PIN-682 314. R1 BY ADV. SRI.P.GEORGE VARGHESE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.2368/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 239/2010 OF THE HONOURABLE SUB COURT, ERNAKULAM. P2:- COPY OF THE ATTACHMENT SCHEDULE IN IA. 2802/2010 IN OS. 239/2010 SUB COURT, ERNAKULAM. P3:- COPY OF THE DISCHARGE SUMMARY OF THE PETITIONER ISSUED FROM THE DEPARTMENT OF CARDIOLOGY, MEDICAL ISSUED FROM THE DEPARTMENT OF CARDIOLOGY, MEDICAL COLLEGE HOSPITAL, KOTTAYAM. P4:- COPY OF THE MEDICAL CERTIFICATE DTD. 26.5.2011 ISSUED BY THE ASSISTANT PROFESSOR CARDIOLOGY, MEDICAL HOSPITAL COLLEGE, KOTTAYAM, TO THE PETITIONER. P5:- COPY OF THE PETITION DTD. 18.7.2011 TO REMOVE THE CASE FROM THE LIST IA. 4324/2011 IN OS. 239/2010 BEFORE THE HONOURABLE SUB COURT, ERNAKULAM. P6:- COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE KADUTHURUTHY CO- OPERATIVE HOSPITAL TO THE PETITIONER. P7:- COPY OF THE IA. 4384/2011 IN OS. 239/2010 FOR RESTORATION OF THE SUIT DISMISSED FOR DEFAULT FILED ON 20.7.2011. P8:- COPY OF THE IA. 4385/2011 IN OS. 239/2010 FOR KEEPING IN ABEYANCE THE ORDER OF LIFTING ATTACHMENT TILL RESTORATION PETITION IS CONSIDERED FILED ON 20.7.2011. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2368 of 2011 --------------------------------------- Dated this 28th day of July, 2011 JUDGMENT Since second respondent is not a necessary party for the disposal of this original petition, he is deleted from the party array. Registry shall carry out necessary correction in the cause title of the original petition. 2. Respondent appears through counsel. 3. This original petition seeks reliefs such as calling for records of Ext.P1, suit and pass order allowing Ext.P8, application filed by the petitioner/plaintiff in the suit and restraining respondent from transferring or encumbering, enabling transfer or encumbrance of the property attached till disposal of Ext.P7, application for restoration pending before the the learned Principal Sub Judge. 4. The matter arises from O.S.No.239 of 2010 of the Court of learned Principal Sub Judge, Ernakulam. That is a suit for money, filed by petitioner based on a dishonoured cheque allegedly issued by the respondent. Pending the suit, property of respondent was placed under conditional attachment and after hearing respondent also that order was made absolute. According O.P(C).No.2368 of 2011 -: 2 :- to the respondent, he owed no amount to the petitioner and in respect of certain other transactions petitioner had obtained several signed blank cheques as security based on which several cases are instituted against respondent either by petitioner himself and through others. The suit was posted for trial in the list on July 19, 2011. While so, on July 18, 2011 petitioner filed Ext.P5, application with a request to remove the case from the list stating that in May, 2011 he had suffered a serious heart attack and on July 17, 2011 he suffered another chest pain and that he required an eye surgery on the 20th of the same month for which he was to be admitted in the hospital on 19th of that month. In the circumstance, he expressed inability to appear in Court on the day on which the case was listed for trial and requested learned Sub Judge to remove the case from the list. It is submitted that relevant medical records were also produced along with Ext.P5, application. The application came before learned Sub Judge on the listed day, July 19, 2011. Learned Sub Judge was not impressed by Ext.P5, application, dismissed it and dismissal of the suit for default followed. Immediately on dismissal of the suit, it is submitted, counsel for the respondent made an oral request to lift the attachment. Learned Sub Judge O.P(C).No.2368 of 2011 -: 3 :- accepted that request and lifted the attachment the same day (July 19, 2011). On July 20, 2011 petitioner filed Ext.P7, application for restoration of the suit and Ext.P8, application to keep the order lifting attachment in abeyance. Learned counsel for petitioner submits that copies of Exts.P7 and P8, applications were tendered to the counsel for respondent but the counsel refused to accept the same as the suit was dismissed for default. That fact was endorsed on Exts.P7 and P8, applications. Learned Sub Judge ordered notice to the respondent on Exts.P7 and P8, applications to be returned on August 29, 2011. In the meantime, on July 20, 2011 respondent through the same counsel filed application to the learned Sub Judge to hand over the order lifting attachment to be communicated to the Sub Registrar, Mulanthuruthy. That application was allowed without giving notice to the counsel for petitioner. In the circumstance, this original petition is filed under Art.227 of the Constitution seeking reliefs as above stated. 5. Learned counsel for petitioner submits that refusal of counsel for respondent to take notice of Exts.P7 and P8, applications was purposeful as is revealed from the fact that the same counsel filed application on July 20, 2011 to hand over O.P(C).No.2368 of 2011 -: 4 :- order of lifting attachment. It is argued that having regard to the facts and circumstances learned Sub Judge ought to have kept the order lifting the attachment in abeyance until Ext.P7, application was disposed of. For, the property attached is the only property of respondent and if before the suit is restored to file and appropriate orders regarding attachment is passed by learned Sub Judge the property is transferred or encumbered, petitioner will be put to irreparable injury. 6. Learned counsel for respondent submitted that the suit is vexatious and frivolous and is part of the continued harassment by petitioner. It is submitted that on the application to hand over a copy of order lifting the attachment attempt was made to serve notice on counsel of petitioner but he was not available and that matter was endorsed on the application and presented before the learned Sub Judge. 7. It is seen from the submissions made by learned counsel on both sides that even on July 20, 2011 counsel for respondent in the trial court held vakalath for respondent as is evident from the fact that I.A.No.4386 of 2011 was filed through the same counsel. In that situation, it was appropriate for the counsel for respondent in the trial court to have taken notice of O.P(C).No.2368 of 2011 -: 5 :- Exts.P7 and P8, applications. 8. Now coming to Ext.P8, application wherein petitioner requested learned Sub Judge to keep the order lifting attachment in abeyance I am inclined to think that having regard to the facts and circumstances learned Sub Judge ought to have passed an interim order. Otherwise petitioner may be put to irreparable loss and injury if ultimately he is given a decree against respondent and in the meantime the only property is sold or encumbered. Counsel on both sides has submitted before me that until now, no document is executed by the respondent or registered by the Registrar. Having regard to the circumstances above stated, it appears me just and proper that the order lifting attachment is kept in abeyance until learned Sub Judge disposes of Ext.P7, application and pass appropriate order regarding attachment. Learned counsel for respondent has aired the apprehension that disposal of the application for restoration of the suit might be prolonged thereby putting the respondent to difficulties. It is made clear that it is open to the respondent to appear before learned Sub Judge in Exts.P7 and P8, applications and request learned Sub Judge for expeditious disposal of the said applications. O.P(C).No.2368 of 2011 -: 6 :- Resultantly this original petition is allowed in part in the following lines: It is directed that the order lifting attachment of property (in O.S.No.239 of 2010 of the Court of learned Principal Sub Judge, Ernakulam) will stand in abeyance till learned Principal Sub Judge passes orders on Ext.P7, application for restoration and in the matter of attachment of the property. (THOMAS P JOSEPH, JUDGE) Sbna/-