IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 OP(C).No. 1061 of 2010(O) ------------------------- OS.92/2009 of SUB COURT, MANJERI .................... PETITIONERS/DEFENDANTS ------------------------------------------ 1. DR. SUPRIYA MENON W/O. SETHUNATH, PUTHENKOVILAKAM HOUSE, NILAMBUR AMSAM DESAM NILAMBUR TALUK. 2. DR. SREEKUMAR, SUKUMAR SREESHYLAM HOUSE, PATHIYARAKKARA, VADAKARA AMSOM DESOM, VADAKARA TALUK. 3. INDU SREE KUMAR, W/O. DR. SREEKUMAR SUKUMAR -DO- 4. M.P. RAJAGOPAL, S/O. LATE KRISHNAN NAIR, PUTHENKOVILAKAM HOUSE, NILAMBUR AMSAM DESAM NILAMBUR TALUK.(POWER OF ATTORNEY HOLDER OF DEFENDANTS 1 TO 3) 5. GEETHA RAJAGOPAL, W/O. RAJAGOPAL, PUTHENKOVILAKAM HOUSE, NILAMBUR AMSAM DESAM NILAMBUR TALUK, (POWER OF ATTORNEY HOLDER OF DEFENDANTS 1 TO 3) BY ADV. SRI.H.BADARUDDIN SMT.B.SHAMEERA RESPONDENT(S): PLAINTIFF ------------------------ M.P. KUNHAMMED KUTTY, S/O. MUHAMMED KUNHI(LATE), SEO GROUP, MANJERI AMSOM AND KARUVAMBARRAM DESOM, MALAPPURAM DIST-676123. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1061 of 2010 -------------------------------------- Dated this the 9th day of December, 2010. JUDGMENT Defendants in O.S.No.92 of 2009 of the court of learned Sub Judge, Manjeri are the petitioners before me. Respondent filed a suit for recovery of more than `.20 lakhs with interest and cost. Petitioners filed written statement with a counter claim for recovery of Rupees eight lakhs and odd from the respondent. It would appear that there was a transaction between the parties as per which the respondent was permitted to run a theater on licence arrangement. Respondent filed Ext.P3, application for attachment before judgment of properties belonging to the petitioners. As per the submission of the learned counsel, it would appear, there was a conditional order of attachment passed by the learned Sub Judge on Ext.P3, application and in answer to that, petitioners filed Ext.P5, application requesting to lift the attachment undertaking to produce bank guarantee for `.12,24,244/-(ie. plaint claim less the amount claimed by way of counter claim). Respondent filed Ext.P6, application for review of the order on Ext.P5, application. Respondent also filed Ext.P7, application to issue a commission for determining value of property in respect of which licence arrangement was made to run the theater. In spite of petitioner being prepared to produce bank guarantee for the entire plaint claim, attachment over the property is not being lifted, it is complained. OP(C) No.1061/2010 2 2. It is not clear whether the learned Sub Judge has made the conditional order of attachment absolute in which case that being an order under Rule 6 of Order XXXVIII of the Code of Civil Procedure (for short, “the Code”) that order is appealable under Order XLIII Rule 1(q) of the Code. If that is the situation, remedy available to the petitioner is to challenge that order in appeal and seek permission of the appellate court to furnish bank guarantee as now offered for the entire plaint claim, interest and cost. 3. If on the other hand learned Sub Judge has not passed any order making the conditional order of attachment absolute and Ext.P3, application is still pending it is open to the petitioners to request learned Sub Judge to lift the attachment on furnishing bank guarantee for the entire plaint claim, interest and cost. If any such request is made, learned Sub Judge shall consider the request. Learned Sub Judge shall expedite disposal of Ext.P3, application if it is still pending disposal. With the above observation this petition is closed. THOMAS P.JOSEPH, Judge. cks