IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 23RD AUGUST 2007 / 1ST BHADRA 1929 Ex.FA.No. 30 of 2006() ---------------------- AGAINST THE ORDER DATED 18/07/2006 IN IA 2134, 1000/2004 IN OS.95/2005 of PRINCIPAL SUB COURT,KOCHI .................... : APPELLANT/PETITIONER ------------------------------------- K.J.XAVIER, AGED 37, S/O.JOSEPH, KADAVIL HOUSE, EDAKOCHI VILLAGE, KOCHI TALUK REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI.P.S.JUDSON, S/O.SAMUEL, HOUSE NO.C.P.1/67, KATTIPARAMP DESOM, PALLURUTHY VILLAGE, KOCHI TALUK. BY ADV. SRI.P.T.JOSE RESPONDENTS: ------------- 1. N.A.MOHAN SINGH, S/O.AYYAPPAN, NADUVILEZHATH HOUSE, THEKKEN MALIPURAM, AZHEEKKAL P.O. 2. R.SOMASUNDARAN, S/O.ACHUTHAN, SECTION OFFICER, DOCK LABOUR BOARD, COCHIN PORT TRUST, COCHIN-3. BY ADV. SRI.T.A.RAJAN SRI.JAYAKUMAR C.K. THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/8/2007, THE COURT ON THE 23.8.2007 THE FOLLOWING: Kurian Joseph & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ex.F.A..NO.30 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of August , 2007 JUDGMENT T.R. Ramachandran Nair, J. The above appeal is filed against the order dated 18.7.2006 in I.A. No.2134/2004 in I.A. No.1000/2004 in O.S. No.95/2004 on the file of the Principal Sub Court, Kochi. The appellant is the claim petitioner in the said I.A. The respondents herein are the plaintiff and the defendant. The claim petition was filed objecting the attachment of the property in question. The court below, by the impugned order found that even though the survey number and extent of the property under attachment and that is claimed by the appellant are same, since the eastern and southern boundaries differ, it cannot be taken that the properties are the same. Accordingly, it was held that a claim petition can be entertained only if the property attached is the property claimed by the claim petitioner. It appears that this finding was rendered on the basis of the objections said to have been filed by the first respondent. 2. Heard counsel for the parties. 3. In the counter affidavit filed by the first respondent against I.A. Ex.F.A.30/2006 -2- No.2134/2004, the main contention raised was that the documents executed are sham documents and therefore the claimant has no locus standi to object the attachment ordered. Since the discrepancies if any with respect to the boundaries have not at all been raised in the claim petition, it is not clear as to how such a finding was rendered by the court below. It is pointed out at the Bar that such an issue was actually pleaded in the counter affidavit filed in I.A. No.1118/2005. Therefore, the order impugned is hereby set aside and the matter is remitted back to the court below for fresh disposal in accordance with law. The parties will be at liberty to adduce evidence, if any, and the court below is directed to dispose of the matter as expeditiously as possible, at any rae, within a period of three months from the date of receipt of a copy of this judgment. The interim order granted by this court will continue till orders are passed afresh, as directed above. The appeal is disposed of in the above terms. (Kurian Joseph, Judge.) (T.R. Ramachandran Nair, Judge.)