IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 WP(C).No. 37173 of 2008(A) -------------------------- OS.309/1999 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER: --------------- OOMMEN KUNJAPPY, S/O.LATE OOMMEN IDICHANDY, AGED 67, KOYIPURATH HOUSE, MAVELIKKARA (REPRESENTED BY POWER OF ATTORNEY HOLDER OOMMEN OOMMEN, KOYIPURATH, MAVELIKKARA) BY ADV. SRI.JACOB CHACKO RESPONDENT(S): --------------- 1. VADIVELU, S/O. NANJAPPA, AGED 61 YEARS, 30/2007, PRANAVAM, N.H BYE PASS, PONNURUNNI DESAM, POONITHURA. 2. R. KAUSALYA, W/O. VADIVELU, AGED 54 YEARS, 30/2007, PRANAVAM, N.H BYE PASS, PONNURUNNI DESAM, POONITHURA. 3. N.V. SUNILKUMAR, S/O. VADIVELU, AGED 31 YEARS, 30/2007, PRANAVAM, N.H BYE PASS, PONNURUNNI DESAM, POONITHURA. 4. N.V. SURESH, S/O. VADIVELU, AGED 31 YEARS, 30/2007, PRANAVAM, N.H BYE PASS, PONNURUNNI DESAM, POONITHURA. 5. M/S. ST. MARY'S PROPERTIES,MULLASSERIL CANAL ROAD, COCHIN-11,REP. BY MANAGING PARTNER BOBY VARGHESE, S/O. LATE VARKEY, AGED 56 YEARS, MANKIDIYIL HOUSE, PADIVATTOM KARA, COCHIN-24. 6. BOBY VARGHESE, S/O. LATE VARKEY, MANKIDIYIL HOUSE, PADIVATTOM KARA, COCHIN-24. 7. SUSY, W/O. BOBY VARGHESE, S/O. LATE VARKEY, AGED 56 YEARS, MANKIDIYIL HOUSE, PADIVATTOM KARA, COCHIN-24. 8. M.V. DAS, S/O. VARKEY MANKUDIYIL, 37/3151, BANK ROAD, KALOOR, KOCHI-17. 9. M.V. THAMPY, S/O. VARKEY MANKUDIYIL, 37/3151, BANK ROAD, KALOOR, KOCHI-17. 10. DR. DONY VARGHESE, S/O. VARKEY, NO.8, SPRING FIELF HOUSE, PADIVATTOM, ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J ------------------------------------------------------------ W.P(C) NO: 37173 OF 2008 A ----------------------------------------------------------- Dated this the 17th December, 2008. JUDGMENT The petitioner in this writ petition assailing Ext.P2 order on I.A.3308/2007 is the petitioner in the said I.A filed in O.S.309/1999 on the file of the Sub Court, Ernakulam. By Ext.P2 order passed by the court below, the petitioner was directed to work out his remedies in execution proceedings without adjudicating the claim advanced therein to the property attached before judgment in the said suit. According to the petitioners they came to know of the attachment effected in June 1999 only in 2007 when they took out the encumbrance certificate in relation to the property purchased by them from the defendants in the suit but before institution of the said suit. The court below has observed that the suit is disposed of making the attachment order absolute and the trial court is therefore not in a position to adjudicate the claim petition and directing that the petitioners could work out their remedy in execution proceedings, the court below closed the I.A. According to the learned counsel for the petitioner the plaintiffs in the suit O.S.309/1999 are not in station and probably it WPC 37173/2008 2 is on account of difficulty experienced in serving notice on them that the court below has closed the claim petition making the above observations vide Ext.P2 order. All the same when an attachment before judgment is ordered and is effected, the claim to the property so attached has to be adjudged by the court which ordered the attachment. Consequently the court below was bound to adjudge the claim advanced vide I.A. 3308/2007 without deferring it to be advanced on the execution side. Hence I set aside Ext.P2 order and remit I.A.3308/2007 in O.S.309/1999 back to the Sub Court, Ernakulam. The Sub Judge shall dispose of I.A.3308/2007 afresh on merits. This writ petition is disposed of with the above directions. K.P.BALACHANDRAN Judge jj WPC 37173/2008 3 K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: