IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 CRP.No. 395 of 2008() --------------------- AGAINST THE ORDER DATED 11/04/2008 IN IA.2116/2008 IN OS.318/2008 of I ADDL.SUB COURT, THRISSUR .................... REVN. PETITIONER: PETITIONER/PLAINTIFF: ----------------------------- STANLY, S/O. PULLADAN RAPPAI, CONVENT ROAD, KANIMANGALAM, KOORKKANCHERRY VILLAGE THRISSUR TALUK, NOW AT COMPANYPADY STOP, OLLUR. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT: RESPONDENT/DEFENDANT: --------------------- ELSAMMA, W/O. MENACHERRY VARGHESE, D/O. NAYANKARA VARGHESE, NELLANKARA DESOM, NETTISSERY VILLAGE, THRISSUR TALUK. BY ADV. SRI.C.CHANDRASEKHARAN FOR R1 SRI.K.C.VISWAMBHARAN FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P. NO. 395 OF 2008 ------------------------------------------ Dated this the 20th day of June, 2008 O R D E R Petitioner is the plaintiff and respondent the defendant. Suit was instituted for return of advance amount paid under an agreement for sale. I.A. 2116 of 2008 was filed under Rule 5 of Order XXXVIII of Code of Civil Procedure for an order of attachment before judgment of the property covered under the agreement for sale. Under order dated 11.4.2008 learned Sub Judge dismissed the petition for the reason that petitioner did not adduce materials to prove that he is ready and willing to perform his part of the agreement. It is challenged in this petition filed under Section 115 of Code of Civil Procedure. 2. Learned counsel appearing for petitioner and respondent were heard. 3. When suit is for return of advance amount, it is not mandatory for the plaintiff to prove that he has always been ready and willing to perform his part of the agreement. Even if it is a relevant matter to decide the quantum of CRP395/2008 2 advance amount to be returned, that is a matter to be decided at the time of evidence. Even without an order of attachment as provided under Section 55 (g) of Transfer of Property Act there would be a charge for the advance amount paid on the property agreed to be sold. In such circumstances learned Sub Judge was not justified in dismissing the application for the reason that petitioner did not furnish materials to show that he was ready and willing to perform his part of the agreement. Order dated 11.4.2008 in I.A. 2116 of 2008 is quashed. The order of conditional attachment originally passed and lifted by the court as per order dated 11.4.2008 is restored. There would be an order of attachment till the disposal of the suit. Respondent is at liberty to furnish security and seek lifting of the attachment if so advised. M. SASIDHARAN NAMBIAR, JUDGE Okb/-