IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 FAO.No. 212 of 2010() --------------------- AGAINST THE ORDER DATED 27/01/2010 IN IA.6633/2009 IN OS.881/2009 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/PETITIONER/PLAINTIFF ------------------------------------------- VIJAYAN THOMAS @ THOMAS GEOPHAR S/O.THOMAS, KALLUVILA VEEDU, R.C.STREET, NEYYATTINKARA AND NOW RESIDING AT METROINN, PANCHAPPURA JN.PALAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.BABU CHERUKARA SRI.ANZAR BASHEER RESPONDENT(S): COUNTER PETITIONER/DEFENDANT ------------------------------------------- RAJAKUMARI, D/O.DEVAYANI AMMA, T.C.11/1559, PARAOTTUKONAM, MAVARATHALAKONAM, ULLOOR, THIRUVANANTHAPURAM. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 02/09/2010, ALONG WITH FAO NO.223 OF 2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- F.A.O.Nos.212 & 223 OF 2010 ------------------------------------------- Dated this the 2nd day of September, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. The plaintiff in a suit for recovery of money allegedly paid as advance under an agreement for sale of immovable property is the appellant. He obtained an order of attachment before judgment against the defendant. Thereafter, he sought for an order of injunction to preserve the property covered by the order of attachment. The defendant contended that the money paid was essentially security and she was entitled to appropriate it towards the loss sustained on account of the failure or breach of the plaintiff to perform his part of the contract. Learned counsel for the appellant quite rightly says that the order of attachment before judgment has been issued in the form of a conditional order initially and that the said order is now in force. This means that if the defendant does not show cause against the conditional order or does not furnish security, it may be open to FAO.212/10 & 223/10 2 the trial court to pass appropriate orders, including by confirming the conditional order. But that does not give any room for the appellant to obtain a further order of temporary injunction against the defendant who is admittedly the owner of the property. The court below has, in our view, rightly dismissed the plaintiff's application for temporary injunction and has granted an order for temporary injunction at the instance of the defendant, however leaving open any question referable to the factum of the quarry being conducted in accordance with the laws governing quarrying of minerals and minor minerals. We find no ground to interfere with the impugned order. The appeals fail. They are accordingly dismissed in limine. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.2/09.