IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 FAO.No. 36 of 2008() -------------------- AGAINST THE ORDER DATED 16/11/2007 IN IA.1649/07 IN OS.170/2007 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/PETITIONER: ------------- NAZAR, AGED 34 YEARS, S/O.JALAL, KAREEMA MANZIL, VETTOOR DESOM, VETTOOR VILLAGE, CHIRAYINKEEZHU TALUK. BY ADV. SRI.J.JAYAKUMAR RESPONDENT(S): RESPONDENTS: ------------------- 1. A.THOMAS, S/O.ABRAHAM THOMAS, VELLIYATH VEEDU, ARUKALICKAL EAST, NEDUMON, EZHAMKULAM, ADOOR TALUK. 2. RAJENDRAN, S/O.NADARAJAN, RAJ BHAVAN, KARETTE, VAMANAPURAM NEDUMANGAD TALUK. ADV. SRI.LATHEESH SEBASTIAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/07/2009, ALONG WITH FAO NO. 37 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O.Nos.36 & 37 of 2008 ------------------------------- Dated this the 27th July, 2009 J U D G M E N T Bhavadasan, J. Two interlocutory applications, I.A.Nos.244 of 2007 in O.S.No.138 of 2006 and 1649 of 2006 in O.S.No.170 of 2007 were disposed of by a common judgment . Both applications were dismissed, against which the petitioner before the court below has come up in appeal. F.A.O.No.36 of 2008 arises out of the order in I.A.No.1649 of 2007 in O.S.No.170 of 2007 and F.A.O.No.37 of 2008 arises out of the order in I.A.NO.244 of 2007 in O.S.No.138 of 2006, on the file of Sub Court, Attingal. 2. Both these appeals arise out of the claim petitions filed by the appellant before the court below. The first respondent in these appeals instituted two suits against F.A.O.Nos.36 & 37 of 2008 2 respondents 2 and 3, i.e., O.S.No.138 of 2006, a suit for recovery of advance money paid as per the agreement for sale and O.S.No.170 of 2007, in fact filed before Sub Court, Pathamthitta, as O.S.No.151 of 2006, which was later transferred to Sub Court, Attingal, and re-numbered as O.S.No.170 of 2007. It was a suit for recovery of an amount of Rs.7 lakhs against the defendants by the same plaintiff. Plaintiff sought attachment of the property belonging to the defendants in the suit. In both these cases, attachment was ordered before judgment and the properties were attached. 3. Thereafter, petitioner before the court below came forward with petitions, I.A.Nos. 244 of 2007 in O.S.No.138 of 2006 and I.A.No.1649 of 2007 in O.S.No.170 of 2007, seeking to have the attachment lifted. He claimed to be a bona fide purchaser from defendants 2 and 3 of property that was brought under attachment. It seems that no evidence as such was adduced before the court below. The court below came to the conclusion that there was no sufficient grounds for lifting the F.A.O.Nos.36 & 37 of 2008 3 attachment over the respective properties and dismissed both the petitions. Hence, these appeals. 4. It is an admitted fact that in F.A.O.No. 37/2008 which arise from O.S.No.138/2006, there was an agreement for sale between the first respondent along with other two respondents. According to the first respondent, before the court below, he has paid an amount of Rs.6 lakhs as advance. Since the agreement was repudiated, he sought for recovery of the advance amount paid. The claim petitioner before the court below was unaware of the transactions and litigations pending between the plaintiff and defendants. It is also stated that he had not filed any application for return of the advance amount before the court below. If that contention is valid, when there is an agreement of sale, unless the buyer has improperly declined to accept delivery of the property, and there is a charge on the property as per the provisions contained in Section 55(6)(b) of the Transfer of Properties Act, strictly speaking, the attachment is unnecessary, until it is shown that the buyer had by his own F.A.O.Nos.36 & 37 of 2008 4 conduct made it impossible to take possession of the property. Therefore, as far as F.A.O.37 of 2008 is concerned, strictly speaking, there is no need of attachment, and the attachment has to be lifted subject to the appellant provides security for the plaint amount. 5. But the situation is different as regards F.A.O.No.36/2008 is concerned. That was in respect of a suit for return of money, due to dishonour of a cheque for want of funds. The attachment in respect of that property is not proper, since it had already been sold to the claim petitioner, even before attachment. The court below, therefore, is not justified in retaining the attachment in O.S.No.170 of 2007. In the result, these appeals are disposed of as follows:- 1) The impugned order is set aside. As far as F.A.O.No.37 of 2008 is concerned, the attachment shall stand F.A.O.Nos.36 & 37 of 2008 5 lifted provided the appellant furnishes security for the plaint claim. 2. As regards, F.A.O.No.36 of 2008 is concerned, the attachment shall stand lifted. 3) The court below shall make every endeavour to dispose of the suit, as early as possible. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.