IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 OP(C).No. 1846 of 2011(O) ------------------------- AGAINST THE ORDER IN IA 1768/09 IN OS.108/2006 of SUB COURT,KOTTARAKKARA .................... PETITIONER: ------------------ MOHAMMED RAFI, MATTAPPALLIL VEEDU, KOLLAYIL.P.O., CHITHARA VILLAGE, KOTTARAKKARA, KOLLAM. BY ADV. SRI.SYAM J SAM RESPONDENT(S): --------------- 1. A.R.BINUJA, W/O.FAISAL, 4/23, N.G.O.QUARTERS, THRIKKAKARA, ERNAKULAM. 2. SHAJAHAN, S/O.ALIYARKUNJU, PERUMPULIVILAYIL VEEDU, VELLARI MURI, NILAMEL VILLAGE, KAITHODU.P.O. PIN 691 541. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1846/2011 APPENDIX PETITIONER'S DOCUMENTS : EXT.P1: COPY OF THE ORDER DATED 1.8.2009 IN I.A.NO.1768/2009 IN O.S.NO.108/2006 ON THE FILE OF THE SUB COURT, KOTTARAKKARA. EXT.P2: COPY OF THE JUDGMENT DATED 23.3.2010 IN RSA NO.113/2010 OF THIS HON'BLE COURT. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. ---------------------------- O.P.(C).No.1846 of 2011 ----------------------------- Dated this the 24th day of June, 2011 JUDGMENT The petitioner filed O.S.No.108 of 2006 on the file of the Sub Court, Kottarakkara, against the second respondent for realisation of money and applied for attachment before judgment of an item of immovable property. The court below passed an order of conditional attachment. The first respondent got herself impleaded in the suit. She also filed I.A.No.1768 of 2009 to lift the attachment on the ground that the defendant had transferred the property to her on 1.4.2003, three years before the filing of the suit. The court below, by the order dated 1st August 2009, allowed the application filed by the first respondent and dismissed the application for attachment before judgment. The conditional order of attachment was lifted. 2. The application filed before the court below must be O.P.(C) No.1846/2011 2 one under Rule 8 of Order 38 of the Code of Civil Procedure. Such an application should be adjudicated upon in the manner provided for the adjudication of claims to property attached in execution of a decree for payment of money. Such claim petition comes under Rule 58 of Order 21 of the Code of Civil Procedure. Sub Rule 4 of Rule 58 provides that where any claim or objection has been adjudicated upon under Rule 58, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Therefore, the order impugned is an appealable order. Since an appeal lies, the Original Petition is not maintainable. Accordingly, the Original Petition is dismissed as not maintainable. K.T.SANKARAN JUDGE csl