IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 Ex.FA.No. 5 of 2006() --------------------- AGAINST THE ORDER DATED 17/11/2005 IN EA.1279/05 IN E.P.No.226/04 IN OS.132/1999 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER IN E.A/3RD PARTY: ------------------------------------------------------- JACOB, S/O. KUNHAPPU VEETTIL GEORGE, KARIATTUKARA DEOSM, ARANATTUKARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANT: ----------------------------------- 1. MOHANDAS, S/O. VENKITARAMAN EMBRANTHIRI ITTYAMADATHIL HOUSE, VELLANCHIRA, THRISSUR. 2. RAMAKRISHNAN, S/O. CHEERAMPARAMBIL VELAYUDHAN, CHEMBUKKAVU VILLAGE DESOM, THRISSUR TALUK. BY ADV. SRI.M.K.DILEEP KUMAR FOR R1 SRI.K.M.JAMALUDHEEN FOR R2 SMT.LATHA PRABHAKARAN FOR R2 SRI.K.H.SANOJ FOR R2 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.333/2006 IN EX.FA.NO.5/2006 ------------------------- Dismissed Sd/- P.R.RAMAN, JUDGE 17/7/2008 Sd/- V.K.MOHANAN, JUDGE. P.R.RAMAN & V.K.MOHANAN,JJ. ------------------------------- EX.F.A.NO.5 OF 2008 -------------------------------- Dated this the 17th day of July, 2006 JUDGMENT Raman,J. This is an appeal filed against the order dated 17/11/2005 in E.A.No.1279/2005, which is a application filed by the appellant/petitioner for return of fixed deposit receipt deposited by him in I.A.No.3796/2004. This application was dismissed stating that no evidence is adduced and in view of the order passed in E.A.No.639/05 and the findings therein, this petition was dismissed. We have called for the records. We find that E.A.No.639/05 was filed by one Mohandas, who is the lst respondent herein, for disbursing an amount of Rs.2,65,000/- as per the fixed deposit receipt deposited in court. The appellant herein contested the matter and finally an order was passed allowing the prayer made in the said application. The contention of the appellant is that his property was attached in execution of a -2- EX.F.A.No.5/2006 decree in which he was not a party. On coming to know about the attachment, he filed a claim petition. In order to lift the attachment he furnished security by way of fixed deposit receipt and offered to deposit the same in court. Thus, the attachment was lifted accepting the fixed deposit receipt. But there is no adjudication as to whether the property itself is liable to be attached and proceeded with. But no steps were taken by him in that regard. Instead the decree holder already filed an application, E.A.No.639/05 as noticed above, on which an order was already passed allowing him to receive the amount. Therefore, the dismissal of E.A.No.1279/2005 in view of the order passed in E.A.639/05, cannot be faulted. However the fact remains that the question as to whether the property is liable to be attached, was not considered and the contention whether the appellant is a bona fide purchaser was not gone into. Since the appeal pertains only against the order in E.A.No.1279/05 and for the reasons already stated, we do not find any justifiable reason to set aside the order. -3- EX.F.A.No.5/2006 In the above circumstances, we dismiss the appeal. The appellant seeks permission to file a review petition. We make it clear that it is not necessary to grant any permission as sought for. It is always open to the appellant to seek other remedies available to him including filing of a review petition and in case a review petition is filed, the period during which the proceedings were pending as above will stand excluded while considering the delay in filing the review. P.R.RAMAN, Judge. V.K.MOHAHAN, Judge. kcv.