IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 RFA.No.448 of 2006 ----------------------- (AGAINST THE ORDER DTD. 12.11.2004 IN I.A.3587/2004 IN O.S. 383/2004 OF PRINCIPAL SUB COURT, IRINJALAKUDA) ....... APPELLANT/CLAIM PETITIONER(NOT PARTY IN THE SUIT): ----------------------------------------------------------------- SEENA SUNNY, W/O.PENGIPARAMBIL SUNNY, CONVENT ROAD, KIZHAKKE CHALAKKUDY VILLLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE. RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANT: -------------------------------------------------------------------- 1. JOSEPH KIDANGATH, S/O.CHEKKALAKKAL KOCHUVAVA, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. C.D.BIJU, S/O.CHENGINIMATTAM DEVASSY, NEAR ST.JOSEPH'S CHURCH, NORTH CHALAKKUDY, CHALAKKUDY P.O. THRISSUR DISTRICT. BY MR.RENJITH THAMPAN, ADVOCATE, FOR R1. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, ALONG WITH W.P.(C) No.31430/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------ R.F.A. No.448 OF 2006 & W.P.(C) No.31430 OF 2007 ------------------------------------------ Dated this the 11th day of March, 2009. J U D G M E N T Satheesachandran, J. The appeal and also the writ petition arise from O.S.No.383 of 2004 on the file of the Sub Court, Irinjalakuda. The former was filed against the dismissal of a claim petition seeking the lifting of the attachment ordered over the plaint property, while the suit was pending for trial. The writ petition was filed by the plaintiff in the suit after decree was passed challenging the order of the Execution Court lifting the attachment over a portion of the plaint property on the application moved by the claimant, whose application had been previously dismissed by the court. 2. The parties herein are referred to as the plaintiff, the claimant and the defendant. Since the issue emerging for adjudication in the appeal and also in the writ petition, though the orders challenged are at different stages of the suit, one, R.F.A.448/06 & W.P.(C) 31430/07 2 before passing of the decree and, the other in execution, is common, both the appeal and the writ petition are disposed of, after being heard together, under this common judgment. 3. The plaintiff instituted a suit for specific performance of an agreement of sale alleging that the defendant had obtained from him a sum of Rs.16,25,000/- as part of the sale price of Rs.25,00,000/- agreeing to sell a room in a multi storied building proposed to be constructed in Chalakudy town. However, later to defraud the plaintiff, he entered into a partnership with another in which the plaint property was brought in as an asset of the firm. The firm was later dissolved by the partners providing for plaint B schedule item to the defendant and the rest in favour of the other party. The plaint A & B schedules were attached before judgment on the application of the plaintiff. 4. The defendant remained ex parte. The claimant moved an application in the suit for lifting the attachment contending that the plaint property belonged to the firm and by virtue of the dissolution, he became the owner of the property except plaint B schedule allotted in favour of the defendant. The application for R.F.A.448/06 & W.P.(C) 31430/07 3 lifting the attachment was dismissed and impeaching its correctness, the claimant preferred the appeal, R.F.A.No.448/2006. 5. The suit was decreed in part directing the defendant to refund the sale price collected and the decree provided a charge over plaint B schedule allotted to the defendant for realization of the sum. When the decree was put in execution, the claimant again moved an application as I.A.No.1251/2007 seeking for lifting of the attachment over plaint A schedule excluding plaint B schedule over which alone charge was created under the decree. That application was allowed by the Execution Court by order dated 23.08.2007, and its correctness is impeached by the plaintiff in W.P.(C) No.31430/2007 invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 6. We have heard the learned counsel on both sides, the plaintiff and the claimant. Service by publication has been effected against the defendant in the appeal, but he has not entered appearance. R.F.A.448/06 & W.P.(C) 31430/07 4 7. At the time of hearing, learned counsel for the claimant expressed readiness and willingness of the claimant to furnish a bank guarantee for the entire decree amount with cost and interest till date, which is approximately assessed by both sides at Rs.27 lakhs, as security to retain the order lifting the attachment over plaint A schedule excluding plaint B schedule by the Execution Court till the satisfaction of the decree by proceeding against plaint B schedule belonging to the defendant. Learned counsel for the claimant urging for permission to participate in the auction for sale over plaint B schedule in execution submitted that in case the sale price fetched is less than Rs.27 lakhs, the bank guarantee to the extent required to fetch the sale price of Rs.27 lakhs can be enforced by the decree holder-plaintiff. If sale price fetched is Rs.27 lakhs or above, the bank guarantee is not enforcible, but it will remain effective till confirmation of such sale and satisfaction of the decree. The proposal made as above by the claimant is agreeable to the learned counsel for the plaintiff and it was submitted that the appeal and the writ petition can be closed and disposed of R.F.A.448/06 & W.P.(C) 31430/07 5 directing the Execution Court to proceed with the execution and carry out the sale of plaint B schedule as expeditiously as possible, complying with the rules. 8. In the above circumstances, as mutually agreed upon by the parties, the plaintiff and the claimant, the following orders are passed: The order passed by the Execution Court in I.A.No.1251/2007 dated 23.08.2007 lifting the attachment excluding the plaint B schedule shall stand confirmed on condition of the claimant furnishing a bank guarantee for a sum of Rs.27 lakhs within a period of two weeks undertaking that the bank guarantee can be enforced to the extent necessary to recoup the price of Rs.27 lakhs in case the plaint B schedule on sale fetches a lesser price, below Rs.27 lakhs. If the bank guarantee is furnished as above within the time stipulated, the Execution Court shall permit the claimant to bid in the public auction held for sale of the B schedule property to realize the decree debt. In default of furnishing the bank guarantee as agreed, the order passed by the Execution Court in R.F.A.448/06 & W.P.(C) 31430/07 6 I.A.No.1251/2007 shall stand vacated and the attachment will continue over the entire A schedule property. The Execution Court shall complete the proceedings of sale over B schedule property, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. The parties are directed to appear before the Execution Court on 23.03.2009. The appeal and the writ petition are disposed of as indicated above directing both sides to suffer their costs. KURIAN JOSEPH JUDGE S.S.SATHEESACHANDRAN JUDGE smp R.F.A.448/06 & W.P.(C) 31430/07 7 KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. R.F.A. No.448 OF 2006 & W.P.(C) No.31430 OF 2007 J U D G M E N T 11.03.2009