IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 FAO.No. 159 of 2008() --------------------- AGAINST THE ORDER DATED 09/04/2008 IN IA. 1136 /2008 IN OS.192/2008 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT/RESPONDENT -------------------------------------- BETTY JOSEPH, S/O.MUNDADAN JOSEPH, THURAVOOR VILLAGE, KIDANGOOR KARA, ALUVA TALUK (BETTY JOSEPH, C/O.METRO SILKS, ANGAMALY P.O). BY ADV. SRI. S.V.BALAKRISHNA IYER SRI K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON RESPONDENTS: RESPONDENT/PETITIONER --------------------- SARVANATH, S/O.PZHAVELIL SADANANDAN, THURAVOOR VILLAGE AND DESOM, ALUVA TALUK, NOW AT 'KAILASAM', KAIPARAMBIL VEEDU, IKKARAKUNNU DESOM, VELOOKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. DR.V.N.SANKARJEE FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- F.A.O.NO.159 OF 2008 -------------------------------- Dated this the 13th day of August,2008 JUDGMENT Raman,J. This is an appeal against the order dated 9/4/2008 passed by the Additional Sub Court, Irinjalakuda in I.A.No.1136/2008 in O.S.No.192/08. That I.A. was filed for attachment of the property scheduled in the petition. The suit is one for realisation of money. The total claim made in the plaint is Rs.60 lakhs with interest thereon. The court below on 15/3/2008 ordered attachment of the petition schedule properties consisting of item Nos. 1 and 2. Subsequently, the appellant, who was the respondent therein, filed a counter stating that both the properties are situated in the same city and one item of the property itself will be sufficient to secure the interest of the plaintiff, since it will fetch more than Rs.60 lakhs and therefore contended that the attachment of the entire property is unnecessary and sought for lifting of the attachment -2- F.A.O.No.159/2008 with regard to item No.1. The petitioner/plaintiff however submitted that he has no objection in raising the attachment with regard to item No.2 but prayed that the attachment may continue in respect of item No.1 property. Therefore, there was a dispute as to the items of property to be attached. After hearing both sides, the court below agreeing with the contention of the plaintiff/petitioner lifted the attachment with regard to item No.2 and affirmed the order of attachment with regard to item No.l. Aggrieved thereby this appeal is preferred. 2. The learned Senior Counsel Sri S.V.Balakrishna Iyer appearing for the appellant would contend that the court below did not actually adjudicate on the question as to whether item 1or item 2 will be sufficient to secure the plaint claim. According to the appellant, the attachment of item No.2 alone will be sufficient to secure the interest of the plaintiff and therefore the court below ought to have lifted the attachment in respect of item No.1. He also submitted in the course of argument that he is prepared to make a -3- F.A.O.No.159/2008 cash deposit of Rs.10,00,000/- (Rupees ten lakhs) and offer other immovable property by way of security for the balance amount to secure the plaint claim. Though it is contended by the respondent that there are encumbrance in respect of item No.2 as the reason for pressing for continuance of the attachment in respect of item No.1, there is no material placed on record by either side except the affidavit sworn into regarding the value and encumbrance if any thereon. That being the situation, we think that the proper course open to this Court is to direct the appellant to move the court below for modification of the order impugned in this appeal, after making cash deposit of Rs.10,00,000/- (Rupees ten lakhs) and offering alternative security for the balance amount to secure the plaint claim, in which event, the court below, after hearing both sides, will pass appropriate orders and if it is found that the alternative security will satisfy the requirement as stated above, it will make necessary modification to the order. Since the appellant wants emergent orders lifting the attachment in respect of item No.1, it is open to -4- F.A.O.No.159/2008 her to file an application to that effect along with the deposit as stated above before the court below whereupon the respondent shall file his counter affidavit, if any, within two weeks and the court below will hear and dispose of the matter expeditiously. Appeal is disposed of as above. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv. -5- F.A.O.No.159/2008