IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 OP(C).No. 425 of 2010(O) ------------------------ IA NO.1163/2010 IN OS.29/2009 of SUB COURT, THIRUVALLA .................... PETITIONER (S): -------------------- K.K.SREEDHARAN @ SREEDHAR K.KOTTARAM AGED 50 YEARS S/O.KOTTARATHIL HOUSE, KUMARAMANGALAM VILLAGE, THODUPUZHA. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SRI.M.D.SASIKUMAR SRI.DIPU JAMES RESPONDENT(S): --------------- 1. DIAMOND REAL ESTATE LTD REPRESENTED BY ITS PRESENT MANAGING DIRECTOR, SUBHASH SOMAN AGED 30 YEARS, S/O.SOMAN,ROHINI HOUSE, PALLICKAL MURI,MYLAM VILLAGE, KOTTARAKKARA TALUK,PIN-691 506. 2. SUBHASH SOMAN, AGED 30 YEARS, S/O.SOMAN ROHINI HOUSE, PALLICKAL MURI,MYLAM VILLA GE,KOTTARAKKARA TALUK,PIN-691 506. ADV. SRI.P.HARIDAS FOR R1& R2 SMT.S.SIKKY FOR R1 & R2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.425 of 2010 -------------------------------------- Dated this the 26th day of October, 2010. JUDGMENT Plaintiff in O.S.No.29 of 2009 of the court of learned Sub Judge, Thiruvalla is the petitioner before me challenging Ext.P3, order disposing of I.A.No.1163 of 2010 . For the sum of more than Rs.67 lakhs allegedly due to the petitioner, certain properties of respondent No.1 were placed under conditional attachment as per order on I.A.No.434 of 2009. Respondent No.1 filed Ext.P1, application in the court below seeking a clarification that the order of attachment would not curtail its right to conduct a bar or obtain licence for the said purpose in the attached property. Petitioner filed Ext.P2, counter affidavit. Learned Sub Judge has passed Ext.P3, order disposing of Ext.P1, application observing that the order of attachment neither precludes any party from conducting any lawful business in the attached property nor curtails right of any party in securing a licence or renewing the same for conducting bar or restaurant. Learned Sub Judge pointed out that the order of attachment only prevented parties from alienating the attached property or encumbering it with any liability and that if any transfer and encumbrance are made contrary to the attachment that shall be void as against all claims enforceable under the attachment. In the above situation, it required no clarification accordingly learned Sub Judge disposed of I.A.No.1163 of 2010. Petitioner is aggrieved since according to him under the cover of clarification made by the learned Sub Judge respondent No.1 might OP(C) No.425/2010 2 offer the attached property as security which ultimately would affect right and remedy of petitioner to realise the amount that may be decreed from the attached property. Learned counsel points out that the liability for payment of sales tax would bear first charge on the property of respondent No.1. Learned counsel for respondent No.1 contends that Section 64 of the Code of Civil Procedure (for short, “the Code”) only prevented private alienation or delivery of property attached or of any interest therein and that order of attachment cannot and does not prevent respondent No.1 from conducting or carrying on business in the attached property or seeking renewal of licence for the said purpose. Having gone through Section 64 of the Code I am inclined to agree with the argument advanced by learned counsel for respondent No.1. Order of attachment does not prevent respondent No.1 from conducting or carrying on business in the attached property or securing licence for the said purpose. But the order of attachment would prevent respondent No.1 from encumbering the property for any purpose whatsoever as prohibited by Section 64 of the Code. Learned counsel for respondent No.1 states that in tune with Section 64 of the Code, respondent No.1 will not offer the attached property as security for the business being conducted or proposed to be conducted in the attached property. In the light of above no further order is required in this petition. Accordingly in OP(C) No.425/2010 3 the light of what I have stated above and accepting and recording the submission made by learned counsel for respondent No.1, this petition is closed. THOMAS P.JOSEPH, Judge. cks