IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 FAO.No. 192 of 2009() ------------------------------ AGAINST THE ORDER DATED 22/06/2009 IN IA 53/07 IN OS.33/2006 of SUB COURT, CHERTHALA .................... APPELLANT/COUNTER PETITIONER 1, --------------------------------------------------- SUHAIL, AGED 35, S/O.MUHAMMED YOOSAF, KAKKATTU HOUSE, PULLEPPADY, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.SHAJI THANKAPPAN RESPONDENT(S): PETITIONER & COUNTER PETITIONER NO.2 ----------------------------------------------------------------------------------------- 1. SEENATH, AGED 35 D/O.,KHALID, KALLARACKAL, NADUVATHNAGAR PO, AROOKUTTY VILLAGE, CHERTHALA TALUK. 2. MUHAMMED HAJI, AGED 42, S/O.PAREETH, POZHIYIL HOUSE, PANAVALLY VILLAGE, CHERTHALA TALUK ADV. SRI.V.L.SHENOY FOR R1 SRI.L.JAYAWANTH FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ F.A.O.No.192 of 2009 ---------------------------------------------- Dated, this the 4th day of November, 2009 J U D G M E N T K.M.Joseph, J. This appeal is filed against an order lifting attachment. We heard the learned counsel for the appellant and learned counsel for the Ist respondent. 2. The office has, in fact, noted that the order is one passed under Order 21 Rule 58 of C.P.C. which is not an appealable order. This appeal is filed as if the appeal is against an appealable order. Learned counsel for the appellant would submit that the claim petition is filed under Order 38 Rule 8. But, Order 38 Rule 8 provides that when a claim petition is filed to property attached before judgment, it should be adjudicated upon in the manner provided for adjudication of claims to the properties in execution of a decree for payment of money. Therefore, Order 21 Rule 58 applies. When a decision is rendered after adjudication it becomes a decree under Order 21 Rule 58 (4). We notice that FAO 192/2009 -2- there is oral evidence and also documentary evidence. In fact, the claim petition has been allowed on the basis of the merits of the matter. In such circumstances, we feel that this appeal is not maintainable and accordingly it is dismissed as not maintainable without prejudice to the right of the appellant to file a Regular First Appeal. The Registry will return the certified copy of the order produced to the appellant. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS