IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 FAO.No. 313 of 2009(A) --------------------- AGAINST THE JUDGEMENT/ORDER IN RFA.723/2009 OS.223/2009 of PRL.SUB COURT,IRINJALAKUDA (IA.1487/2009) .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- K.VARGHESE,S/O.DEVASSY, AGED 48,KACHAPPALLY HOUSE,KARUKUTTY KARA, KARUKUTTY VILLAGE,ALUVA TALUK. BY ADV. SRI.C.P.WILSON SMT.ROSE MICHAEL RESPONDENT/RESPONDENT/DEFENDANT ----------------------------------- ELSY,W/O.GEORGE, AGED 49,CHEEROTH HOUSE,MURINGOORTHEKKUMMURY VILLAGE,MUKUNDAPURAM TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) FOR R1 SMT.R.RAJITHA FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 313 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2009 JUDGMENT Joseph, J. This appeal is directed against an order passed by the court below rejecting an application filed under Order 38 Rule 5 C.P.C. The suit was filed by the appellant for return of an amount of Rs. 25 Lakhs paid as advance under an agreement for sale of the petition schedule property. 2. We heard the learned counsel for the appellant and the learned counsel for the respondent. 3. The court below found, considering the facts of the case, that the appellant has filed the suit only to force the respondent to settle the dispute and the appellant has failed to make out a prima facie case. It is found that the appellant was not ready and willing to perform his part of the agreement and that the F.A.O. No. 313 of 2009 2 documents, Exts.B 1 to B4, would show that the respondent was ready and wiling and the agreement could not be performed due to the fault of the appellant. It is also stated that there is no necessity to attach more than 3.5 acres of the property, worth several times the advance amount of Rs. 25 lakhs. 4. The learned counsel for the appellant submits that he was ready and wiling to perform his part of the agreement. He would contend that the appellant may be permitted to furnish a fresh schedule. 5. The learned counsel for the respondent would contend that, at any rate, the proceedings was initiated to harass the respondent. He would further submit that the respondent is prepared to give an undertaking before the court below that the respondent will not transfer the property till the disposal of the suit. 6. Having regard to the facts of the case, we feel that we need not interfere with the order. We take note of the legal position and also the submission made by the counsel for the respondent that the F.A.O. No. 313 of 2009 3 respondent will undertake before the court below that the respondent will not transfer the property till the disposal of the suit. 7. Accordingly this appeal is disposed of as follows. The respondent will file an affidavit before the court below undertaking that the respondent will not transfer the property till the disposal of the suit, within a period of ten days from today. In such event, the suit will be disposed of finally on or before 31.3.2010. It is further made clear that in case the respondent does not file the undertaking as aforesaid, the appeal will stand allowed and there will be an interim attachment before judgment, as sought for by the appellant. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm