IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 FAO.No. 307 of 2009() ----------------------------- AGAINST THE ORDER DATED 30/09/2009 IN IA 3807&3808/2008 IN OS.25/2007 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT:CLAIM PETITIONER: ---------------------------------------------- K.RAJAN, AGED 49 S/O.KUNJU RAMAN, MAMKOPIL VEEDU, THODIYOOR NORTH THODIYOOR VILLAGE, KARUNAGAPALLY TALUK, KOLLAM PRESENTLY RESIDING AT QUARTER NO.5/1 FSRS, SADANADAPURAM PO, KOTTARAKKARA. BY ADV. SMT.SADHANA KUMARI ESWARI RESPONDENT(S): PLAINTIFF AND DEFENDANT: ------------------------------------------------------------------- 1. SYAMALA, W/O.LATE SURESH BABU AGED 45, SARADALAYAM, PAYIKUZHY, OCHIRA, KARUNAGAPALLY. 2. ANIL KUMAR, S/O.SAHADEVAN AGED 33 YEARS, MAMKOMPIL VEEDU, THODIYOOR MARUNAGAPALLY. R1 BY ADV.SRI.K.HARILAL. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ F.A.O.No.307 of 2009 ---------------------------------------------- Dated, this the 30th day of November, 2009 J U D G M E N T K.M.Joseph, J. This appeal is directed against the common order passed in I.A.No.3807/2008 and I.A.No.3808/2008. Appellant filed petition under Order 38 Rule 8 CPC for lifting the attachment of the property. The order of attachment is passed at the instance of the Ist respondent/plaintiff. The 2nd respondent is the defendant in the suit. I.A.No.3808/2008 is a petition filed under Order 9 Rule 9 CPC to restore the application filed by the appellant to lift the attachment. I.A.No.3807/2008 is a petition filed to condone the delay in filing the said restoration petition. These petitions have been rejected by the Sub Judge finding that there is no bonafides in the petitions. There is a delay of 91 days in fling the application to restore the claim petition. According to the Sub Judge the intention of the party is to drag the execution of the decree in collusion with the defendant. 2. We feel that we can take a liberal view and permit the appellant to canvass his contentions and get a decision on the merits of the matter. However, it cannot be F.A.O.307/2009 -2- an unconditional order. In such circumstances, the appeal is allowed and the impugned order is set aside and I.A.No.3807/2008 and I.A.No.3808/2008 are allowed on condition that the appellant will pay a sum of Rs.3,000/- (Rupees three thousand only) as cost to the Ist respondent and produce the memo to the same effect in this Court within a period of two weeks from today. In the meantime the execution proceedings will be kept in abeyance for one month and further proceedings will depend upon the question as to whether the appellant will pay the costs and it is open to the appellant to move the execution court. If the appellant does not pay the amount as directed the appeal will stand dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS Counsel for the Appellant has paid Rs.3,000/- (Rupees three thousand only) towards cost to the counsel for the Ist respondent within the stipulated time in compliance of the direction contained in the judgment dated 30.11.2009 in F.A.O.No.307/09 vide memo cf 8128/09. Sd/- Registrar (Judicial)