IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 WP(C).No. 30574 of 2007(M) -------------------------- AGAINST THE ORDER DATED 27/09/2007 IN IA 1660/07 IN OS.117/2007 of SUB COURT, TIRUR .................... PETITIONERS: ---------------------- 1. POOCHINGAL HAMZA, S/O KUNHAVA, NEAR PWD REST HOUSE, CHERUTHURUTHI, TALAPALLI TALUK, THRISSUR DISTRICT. 2. ARAKKAL MUHAMMED, S/O ABDUL RAHIMAN, CHERUVANNUR AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.DIVAKARAN NAIR RESPONDENTS: ------------------------ 1. PUTHUKULANGARA MUSTHAFA, S/O ALI ASHAN, VELIPRAM AMSOM,DESOM, P.O.RAMANATTUKARA, KOZHIKODE TALUK. 2. KANKADAKKADAVAN MOIDEENKUTTY HAJI, S/O KHADIR HAJI, VALIYORA AMSOM DESOM, THIRURANGADI TALUK, VALIYORA P.O. PIN:676308. R2 BY ADV. SRI.K.RAMACHANDRAN SMT.A.R.DIVYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30574/2007 M APPENDIX PETITIONER'S EXHIBIT: EXT.P1: CERTIFIED COPY OF ORDER DTD. 27/09/07 ON I.A.1660/07 IN O.S.117/207 OF THE SUB COURT, TIRUR. /TRUE COPY/ P.A.TO JUDGE Kss M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 30574 OF 2007 --------------------- Dated this the 7thday of February, 2008 JUDGMENT This writ petition is preferred against the order of the Subordinate Judge, in IA 1660/07 in OS 117/07. 2. The said suit is filed by the plaintiffs for return of the advance money. The total amount claimed is Rs.3,09,025/- . Along with the suit, an application for attachment was filed and there was an interim conditional attachment. Thereafter, the defendants in the suit moved an application for raising the attachment by offering security in the form of an undertaking and a bond executed by another person, who is the owner of other property. The said person is none other than the brother of the defendants. It is submitted that the said property was obtained by him under document No. 307/85. It is also seen from the court order that original title and encumbrance certificate are produced. The present writ petitioners were not happy with the version submitted by the Amin, who had valued the property at Rs.40 lakhs. The court below accepted the Amin's report and held that there is sufficient security and therefore ordered raising attachment of the property. WPC NO 30574/07 2 3. Learned counsel for the petitioners Sri. Divakaran Nair would contend that the approach made by the court is totally erroneous and there is no basis for valuing property at Rs.40 lakhs. Further there is a statutory charge under Section 55(6) of the Transfer of Property Act and therefore the court should not have lifted the attachment as well. Section 55(6) imposes certain conditions to confer a charge on the property. That cannot be decided at a preliminary stage. The plaintiffs have come forward with the suit for realisation of the advance money and seek protection in the form of security to ensure realisation in case he succeeds. Since the writ petitioner is totally dissatisfied with the report of the Amin, I feel in order to safe guard the interest of the plaintiffs in the suit direction may be given to produce the valuation certificate issued by the Tahsildar so that the court can act upon the same and find out whether the said security furnished will be sufficient. On a compliance of the said terms certainly the court is entitled to enter into a finding regarding sufficiency of the security and raise the attachment. The question of statutory charge under Section 55(6) etc. is left vide open. WPC NO 30574/07 3 4. So the order under challenge is set aside and the court below is directed to give a direction to the defendants in the suit to produce the valuation certificate within a very reasonable time and after hearing the plaintiffs in the matter pass appropriate orders in accordance with law. There is an apprehension for the learned counsel for the defendants that on account of these orders neither they are able to deal with their property nor their brother is able to deal with the property. The urgency of the matter may be taken into consideration and expeditious orders may be passed in accordance with law. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 30574/07 4