IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WP(C).No. 1618 of 2010(O) ------------------------- OS.651/2009 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... PETITIONER(S): ------------------------- NIZAM, AGED 48 YEARS, S/O.MOHAMMED KUNJU, KIZHAKKE KARUVELIL HOUSE, KANDANCHIRA, PERINAD, KOLLAM. BY ADVS. MR.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. RESPONDENT(S): --------------------------- 1. SURESH KUMAR, S/O.NARAYANAN, PUTHENVEETTIL, MULLAKKAL, ALAPPUZHA. 2. NIYAS KOYA, S/O.KOYA KUNJU, PEACE GARDENS, KOMALAPURAM, ALAPPUZHA. R2 BY ADVS. MR.M.BALAGOVINDAN, SMT.MINI GANGADHARAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.1618/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.651/2009. P2: COPY OF THE ORDER OF THE LEARNED MAGISTRATE IN I.A.5737/2009. P3: COPY OF THE BOND EXECUTED BY THE NAFEESATH. P4: COPY OF THE FORM SIGNED BY THE 1ST RESPONDENT DTD. 9/10/2009. P5: COPY OF THE SURRENDER FORM SUBMITTED BYTHE 2ND RESPONDENT. P6: COPY OF THE RECEIPT ISSUED BY THE ICICI BANK DTD. 9/10/2009. P7: COPY OF THE PETITION FILED BY THE PETITIONER. P8: COPY OF THE ORDER PASSED BY THE LEARNED MAGISTRATE IN I.A.NO.6257/2009 OF MC.,ALAPPUZHA. P9: COPY OF THE JUDGMENT IN O.S.NO.651/2009 OF M.C.ALAPPUZHA. P10: COPY OF THE DECREE IN O.S.NO.651/2009 OF MC.,ALAPPUZHA. P11: COPY OF THE PLAINT IN O.S.NO.777/2009 OF M.C.,ALAPPUZHA. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE COMMUNICATION DTD. 17/09/2009. /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 1618 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 8th day of March, 2010 JUDGMENT In this petition filed under Article 227 of the Constitution of India the petitioner challenges Ext.P8 order, by which I.A. No.6257 of 2009 was dismissed by the court below, holding that the suit was decreed in terms of the compromise and hence, the application has become infructuous. 2. The 1st respondent instituted O.S. No.651 of 2009 before the Munsiff’s Court, Alappuzha for recovery of an amount of Rs.97, 000/- from the 2nd respondent. The allegation is that the 2nd respondent borrowed a sum of Rs.97, 000/- for repair of his lorry bearing registration No.KL 4X/1884 and a cheque was issued to discharge that liability. According to the petitioner, the cheque was not presented for encashment and the suit was filed for recovery of the said amount. A copy of the plaint is produced as Ext.P1. Along with the suit the 1st respondent moved a petition for W.P.(C) No. 1618/10 2 interim attachment of the vehicle as I.A. No.5737 of 2009. Interim attachment was ordered and the vehicle was seized from a workshop at Kollam on 3-11-2009. A copy of the order is produced as Ext.P2. According to the 2nd respondent, thereafter the vehicle was released to him on payment of the dues. 3. The petitioner submits that he was the owner of the vehicle at the relevant time and the vehicle was taken from his possession, when it was given for repair in the workshop. He was purchased the vehicle as per sale conducted by the ICICI bank on 7-10-2009. He also understood that the 2nd respondent purchased the said vehicle with financial assistance from the ICICI bank. He also understood that the 2nd respondent defaulted in making payment of instalment due to the bank and surrendered the vehicle. The petitioner produced Ext.P4 form which is said to be signed by the 2nd respondent. The petitioner produced certain documents to show that he has paid the amount to the bank. The petitioner filed a claim petition under Order XXXVIII Rule 8 W.P.(C) No. 1618/10 3 and Order XXI Rule 58 of the C.P.C. to release the vehicle, which was dismissed by the court below. 4. Question arises for consideration in this writ petition is whether the finding of the court court below is correct or not?. 5. The learned counsel for the petitioner points out that the court below was not justified in dismissing the petition on the ground of non-existence of the suit. According to him, the attachment order will continue and claim ought to have been considered. 6. The learned counsel appearing for the 2nd respondent submits that if the petitioner is aggrieved by the compromise decree, the proper remedy is to go to appeal. He also produced Ext.R2(a) communication along with the counter affidavit. The 2nd respondent points out that the vehicle was seized from his possession and as per the compromise decree, he is entitled to get possession of the vehicle. 7. None of the contentions were considered by the W.P.(C) No. 1618/10 4 court below. Whether the claim made by the petitioner is correct or not is a different question. The petition was dismissed on the sole ground that the suit is no longer in existence. But whether attachment still continuous is not considered. The court below has not considered whether the claim made by the petitioner is sustainable or not. 8. The learned counsel for the 2nd respondent relies on a decision of the Andhra Pradesh High Court in J. Rama Murthy and others V. Srinivas Corporation General Merchants and Commission Agents and others (AIR 1989 AP 58) and contends that if the petitioner is aggrieved by a decree, his remedy is to file an appeal. There is no quarrel about that proposition. The petitioner is not challenging the decree. His claim petition has been dismissed. If the attachment will survive the decree or will it put and end to the attachment is also to be considered. 9. Hence, the impugned order is set aside and the matter is remitted to the court below for fresh consideration. It is made clear that this Court has not considered the W.P.(C) No. 1618/10 5 matter on merits or about maintainability of the claim petition. The court below will take endeavour to dispose of the claim petition as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. P.BHAVADASAN, JUDGE. mn.