IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 MFA.No. 140 of 2004 --------------------------------- AGAINST THE ORDER DATED 23/06/2004 IN IA 829/2002 IN OPIP.2/1989 of I ADDL. DISTRICT COURT, TRIVANDRUM .................... APPELLANTS/COUNTER PETITIONERS: 1. TVR FUND, REP. BY ITS PARTNER T.VELAYUDHAN ACHARY & T.RAJAGOPAL, KARAMANA, THIRUVANANTHAPURAM. 2. T.VELAYUDHAN ACHARY, PARTNER, TVR FUND, KARAMANA, THIRUVANANTHAPURAM. 3. T.RAJAGOPAL, PARTNER, TVR FUND, KARAMANA, THIRUVANANTHAPURAM. BY ADV. SRI.K.T.SHYAMKUMAR SRI.P.RAMESAN (KANIAPURAM) RESPONDENTS/COUNTER PETITIONERS 4 TO 6: 1. DR.A.KANNAN, REP. BY HIS BROTHER AND POWER OF ATTORNEY HOLDER A.ARUNKUMAR, T.C.XX/1361, KARAMANA, THIRUVANANTHAPURAM. 2. OFFICIAL RECEIVER, DISTRICT COURT, THIRUVANANTHAPURAM. 3. P.PADMANABHAN ACHARY, CHOORAKKATTUPALAYAM, THYCAUD VILLAGE, THIRUVANANTHAPURAM. 4. I.KOMALAVALLY AMMA, DO. DO. ADV. SRI.EASOW MATHEW FOR R2 SRI.M.RAMASWAMY PILLAI FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.F.A.No.140 of 2004 --------------------------------- JUDGMENT Koshy, J. The appellants are attacking the order passed by the I Addl. District Court, Thiruvananthapuram on I.A.No.829/02 in OP(IP)No.2/89. They were respondents 1 to 3 in the court below. The first respondent filed a petition as I.A.No.829/02 to release the property having an extent of 8.250 cents comprised in Sy.No.1852/2 of Thycaud Village on the ground that his predecessor in interest V.K.Varghese got the above property by a court sale in O.S.No.416/80. V.K.Varghese sold the property to the first respondent and he is a bona fide purchaser. But, according to the appellants, they got the property in a suit O.S.No.19/82 filed for specific performance. In the order of the court below there is mention about equitable mortgage. But, there is no material to show that equitable mortgage was created in favour of Dhanalakshmi Bank in the suit O.S.No.416/80. It is now disputed that MFA 140/04 2 I.A.No.829/02 was disposed of without hearing the appellants and they were not given notice regarding the IA. Their substantial rights are affected. Even though objections were raised by the Official Liquidator, we are of the opinion that they ought to have been heard before passing orders on I.A.No. 829/02. Therefore, without expressing any opinion regarding the merits of the case, we set aside the impugned order and remand the matter for passing fresh orders after hearing the parties. As all the parties are before us, they are required to take notice and appear before the I Additional District Court, Thiruvananthapuram on 3.11.2008. Both parties are allowed to adduce further evidence in the case, if so advised. Till fresh orders are passed, status quo as on today shall be maintained. (J.B.Koshy, Judge) 24th September, 2008 (K.P.Balachandran, Judge) tkv