IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 OP(C).No. 1876 of 2011(O) ------------------------------------- IA.1262/2011 IN O.S. NO.198/2008 of II ADDL.SUB COURT,ERNAKULAM ------------------------------------------------------------------------------ PETITIONER(S) : ---------------------- G.BHUVANENDRAN, AGED 64 YEARS, S/O.P.GANGADHARAN, ENGINEER, RESIDING AT NO.48/1840A, PRANAVAM HOUSE, ELAMAKKARA, EDAPPALY THEKKE VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN 682 026. BY ADVS. SRI. P.RAVEENDRAN PILLAI SMT.INDIRA RAVEENDRAN RESPONDENT(S) : ------------------------ 1. SMT.BHAVANI AMMA, AGED 93 YEARS, W/O.KALLATHUPARAMB VEETIL NARAYANA PILLAI, RESIDING AT PANAYIDA VEEDU, ELAMAKKARA, EDAPPALLY THEKKE VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN 682 026. 2. SRI.N.PRABHAKARAN PILLAI, AGED 62 YEARS, S/O.KALLATHUPARAMB VEETTIL NARAYANA PILLAI, BUSINESS, RESIDING AT PANAYIDA VEEDU, ELAMAKKARA,EDAPPALLY THEKKE VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN 682 026. 3. SRI.N.GOPALAKRISHNAN, AGED 58 YEARS, S/O.KALLATHUPARAMB VEETTIL NARAYANA PILLAI, COMPANY WORKER, RESIDING AT PANAYIDA VEEDU, ELAMAKKARA,EDAPPALLY THEKKE VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN 682 026. NS 2/- -2- O.P.C. NO. 1876/2011 4. SRI.N.RAVEENDRAN PILLAI, AGED 55 YEARS, S/O.KALLATHUPARAMB VEETTIL NARAYANA PILLAI, COMPANY WORKER, RESIDING AT PANAYIDA VEEDU, ELAMAKKARA,EDAPPALLY THEKKE VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN 682026. 5. SRI.N.SURESH KUMAR, AGED 48 YEARS, S/O.KALLATHUPARAMB VEETTIL NARAYANA PILLAI, DRIVER, RESIDING AT PANAYIDA VEEDU, ELAMAKKARA,EDAPPALLY THEKKE VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN 682026. 6. SMT.B.BHAGEERATHI AMMA, AGED 64 YEARS, D/O.KALLATHUPARAMB VEETTIL NARAYANA PILLAI, HOUSE WIFE, RESIDING AT PANAYIDA VEEDU, ELAMAKKARA,EDAPPALLY THEKKE VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN 682026. 7. SMT.M.MALATHI AMMA, AGED 60 YEARS, D/O.KALLATHUPARAMB VEETTIL NARAYANA PILLAI, HOUSE WIFE, RESIDING AT PANAYIDA VEEDU, ELAMAKKARA,EDAPPALLY THEKKE VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN 682026. 8. SMT.B.SARASWATHY, AGED 60 YEARS, D/O.KALLATHUPARAMB VEETTIL NARAYANA PILLAI, HOUSE WIFE, RESIDING AT PANAYIDA VEEDU, ELAMAKKARA,EDAPPALLY THEKKE VILLAGE, KANAYANNUR TALUK, ERNAKULAM, PIN 682026. 9. SRI.RAMACHANDRAN NAIR, AGED 79 YEARS, S/O.AMMUKUTTY AMMA, ANANDHABHAVAN, KOVUR KARA, KOVUR VILLAGE, KOZHIKODE TALUK, CHEVAYOOR P.O., KOZHIKODE-673008. ADV. SRI.B.N.SHIVSANKAR FOR R9 THIS OP (CIVIL) HAVING BEEN FINALLY HEARED ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING : NS O.P.C. NO. 1876/2011 APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT P1 : COPY OF THE JUDGMENT IN O.S.NO.198/2008 OF THE 2ND ADDITIONAL SUBCOURT, ERNAKULAM. EXHIBIT P2 : COPY OF THE I.A.NO. 1262/2011 IN O.S. NO. 198/2008 OF THE 2ND ADDITIONAL SUB COURT , ERNAKULAM. EXHIBIT P3 : COPY OF THE OBJECTIONS FILED BY THE PLAINTIFF TO EXHIBIT P2 I.A. EXHIBIT P4 : COPY OF THE ORDER IN I.A. NO.1262/2011 OF THE SUBORDINATE JUDGES COURT , ERNAKULAM . RESPONDENT'S EXHIBITS : NIL / TRUE COPY / P.A. TO JUDGE NS THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.1876 of 2011 --------------------------------------- Dated this 18th day of November, 2011 JUDGMENT Respondents 1 to 8 though served, remain absent. 9th respondent appears through counsel. 2. This original petition is filed by the plaintiff in O.S.No.198 of 2008 of the Court of learned Second Additional Sub Judge, Ernakulam. That is a suit for return of advance sale consideration. During the pendency of the suit, property belonging to respondents 1 to 9 was placed under attachment. The suit was decreed allowing petitioner to realise the advance amount with interest. After the decree was passed, respondents 1 to 8 filed Ext.P2, application to lift the attachment on depositing their share of the decree amount in the bank. Petitioner preferred Ext.P3, objection claiming that the property belonged in co-ownership to respondents 1 to 9, the 9th respondent has not satisfied the decree and hence the attachment cannot be lifted. Learned Sub Judge allowed Ext.P2, application by Ext.P4, order lifting attachment. That order is under challenge. O.P(C).No.1876 of 2011 -: 2 :- 3. Learned counsel for petitioner contends that assuming that lifting of the attachment to the extent it concerned the share of respondents 1 to 8 in the property is correct, there was no justification for the learned Sub Judge lifting attachment to the extent it concerned the share of 9th respondent also in the attached property. According to the learned counsel, respondents 1 to 8 alone deposited their share of the decree amount and 9th respondent has not deposited the amount. 4. I have heard learned counsel for the 9th respondent. Learned counsel supported the order under challenge. 5. As per the case of petitioner, pursuant to the agreement for sale dated 14.01.2006 respondents 1 to 8 received Rs.Five Lakhs from him and thereafter 9th respondent came up claiming right over the property. Hence another agreement was executed on 13.06.2006 between petitioner and respondents 1 to 9, 9th respondent receiving Rs.One Lakh by way of advance. It is accordingly that learned Sub Judge granted decree against respondents 1 to 8 for payment of Rs.Five Lakh with interest and against the 9th respondent for payment of Rs.One Lakh with interest. 6. It is not disputed that the 9th respondent has not satisfied the decree to the extent he is made liable. In that view O.P(C).No.1876 of 2011 -: 3 :- of the matter, learned Sub Judge was not correct in lifting attachment over the property to the extent it concerned the share of the 9th respondent also. Attachment over the share of 9th respondent in the property has to remain until the decree is satisfied or the 9th respondent furnishes sufficient security for the same, requests for lifting the attachment and learned Sub Judge passes appropriate orders on such application. Resultantly this original petition is allowed in part to the extent that Ext.P4, order lifting attachment over the property to the extent it concerned the share of 9th respondent is set aside. It is made clear that attachment over the share of 9th respondent in the property attached will remain in force until the decree as against the 9th respondent is satisfied or, the 9th respondent on furnishing sufficient security for that part of the decree against him requests the learned Sub Judge to lift attachment as against his share also and learned Sub Judge passes appropriate orders on such application. (THOMAS P. JOSEPH, JUDGE) Sbna/-