IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 OP(C).No. 276 of 2011(O) ------------------------ AGAINST THE ORDER IN IA 694/07 IN OS.27/2006 of SUB COURT,THODUPUZHA .................... PETITIONER ------------------ JOSEPH PRAKASH, AGED 41 YEARS, S/O.FRANCIS, THONIKUZHIYIL HOUSE, THUDANGANAD KARA, MUTTOM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENT(S): --------------- 1. HABEEBULLA, AGED 61 YEARS, S/O.MOHAMMED, VADAKKAYIL HOUSE, ACHANKAVALA, MADAKKATHANAM P.O., THODUPUZHA-685 584 2. AYSHA, AGED 29 YEARS, W/O.HARIS, KOTTAYIL HOUSE, MYLOORKARA, VARAPPETTY, KOTHAMANGALAM, ERNAKULAM DISTRICT-686 690 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------ O.P(C).No.276 OF 2011 ------------------------------ Dated this the 10 th day of February, 2011 JUDGMENT Though notice was served by Special Messenger, there is no appearance for the respondents. 2. The petitioner is the plaintiff in O.S.No.27 of 2006 on the Court of the Subordinate Judge of Thodupuzha. The suit is for specific performance of the agreement for sale dated 26.2.2003 entered into between the petitioner and the first respondent. The petitioner says that he was ready and willing to perform his part of the contract. It is stated that the first respondent assigned the property to the second respondent by registered assignment deed No.212 of 2004 and 213 of 2004 on 14.1.2004. It is stated that the second respondent is none other than the daughter of the first respondent. O.P(C).No.276 OF 2011 2 3. The petitioner filed I.A.No.694 of 2007 under Rule 5 of Order 38 of the Code of Civil Procedure to attach before judgment the plaint schedule property. In the application, it is stated that in order to defeat the decree that may ultimately be granted in favour of the petitioner, attempts are being made to sell the plaint schedule property by the second respondent. It is alleged that respondents 1 and 2 had entrusted the matter to real estate brokers. In I.A.No.694 of 2007, the second respondent filed an undertaking affidavit stating that she has no intention to sell or alienate the attachment schedule property. She also undertook in the affidavit that she will not sell, encumber or alienate the attachment schedule property. 4. The grievance of the petitioner is that the court below has not passed final orders in I.A.No.694 of 2007. The learned counsel for the petitioner submits that the undertaking made by the O.P(C).No.276 OF 2011 3 second respondent, if violated, would at best result in her punishment. But it would be difficult to avoid transfer of the property made to strangers. Moreover, the petitioner will have to fight a litigation against parties who acquire rights subsequently. The counsel submitted that though Section 52 of the Transfer of Property Act may apply, any further alienation of the property would create difficulty to the petitioner. Therefore, the petitioner has prayed for a direction to the Sub Court, Thodupuzha to consider and pass orders in I.A.No.694 of 2007. 5. In the facts and circumstances of the case, without expressing any opinion on the merits of the case, or on the contentions raised by the petitioner, the Original Petition is disposed of directing the Sub Court, Thodupuzha to consider and pass final orders, in I.A.No.694 of 2007, as expeditiously as possible, and at any rate within a period of one month from the date of receipt of a O.P(C).No.276 OF 2011 4 copy of the judgment. 6. The learned counsel for the petitioner also submitted that the undertaking given by the second respondent and any order that may be passed by the court below may be directed to be communicated to the Sub Registrar concerned. The court below will consider this request also in accordance with law, and on the merits of the case. The Original Petition is allowed as above. K.T.SANKARAN, JUDGE. cms