IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 28414 of 2009(O) -------------------------- AGAINST THE ORDER IN IA 4736/2009 IN OS.793/2009 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER: --------------- MEENAKSHI, AGED 84 YEARS, W/O.VELAYUDHAN(LATE),OTTALI HOUSE,PALLIPURAM DESOM,VALAPPADU VILLAGE,MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. MR.M.B.PRAJITH RESPONDENTS: --------------- 1. MOIDHEEN ABOOBECKER, AGED 57 YEARS, S/O.KADER @ KUNJUMUHAMMED, PUTHIYAVEETIL HOUSE, KUTTAMANGALAM DESOM, EDATHRUTHI VILLAGE, KODUNGALOOR TALUK,THRISSUR - 680 702 2. PREMLAL,S/O.VELAYUDHAN (LATE), OTTALI HOUSE,PALLIPPURAM DESOM,VALAPPADU VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT - 680 567 3. HARILAL,S/O.VELAYUDHAN(LATE), OTTALI HOUSE,PALLIPPURAM HOUSE,VALAPPADU VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT - 680 567. 4. MANILAL,S/O.VELAYUDHAN(LATE), OTTALI HOUSE, PALLIPPURAM DESOM, VALAPPAD VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DESOM - 680 567. 5. RANI,D/O.VELAYUDHAN(LATE),OTTALI HOUSE, PALLIPPURAM DESOM,VALAPPADU VILLAGE,MUKUNDAPURAM TALUK,THRISSUR DISTRICT - 680 567. 6. SUNILAL,S/O.VELAYUDHAN (LATE), OTTALI HOUSE, PALLIPPURAM DESOM,VALAPPADU VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT - 680 567. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.28414 of 2009 - O --------------------------------- Dated this the 9th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To issue a writ of mandamus or appropriate writ or direction directing the court below to consider and pass Ext.P5 and P9 interlocutory applications within three weeks.” 2. Petitioner is the first defendant in O.S.No.793 of 2009 on the file of the 2nd Additional Sub Court, Thrissur. Suit is one for refund of the advance paid of an agreement of sale, and the first respondent is the plaintiff and other respondents in the writ petition are the codefendants with the petitioner. On the application moved by the first respondent/plaintiff under Order XXXVIII Rule 5 of the Code of Civil Procedure interim attachment of immovable property belonging to the first plaintiff was ordered by the court below. First petitioner/first defendant filed objections to that application contending among other grounds that a portion of the property would be sufficient to secure the suit claim. An application was also moved to modify the order of attachment. However, the court below, after hearing both sides, passed Ext.P8 order making the W.P.(C).No.28414 of 2009 - O 2 interim order of attachment absolute. Petitioner/first defendant thereupon moved an application for review of Ext.P8 order. Ext.P9 is the copy of that application. Nonconsideration of Ext.P9 application and also passing of Ext.P8 order without considering the application moved by the petitioner/first defendant before making the interim order of attachment absolute are canvassed in the writ petition to challenge the propriety and correctness of Ext.P8 order and also for issuing appropriate directions/orders to the court below for an expeditious hearing and disposal of Ext.P9 application. 3. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and it is dispensed with. 4. Perusing Ext.P8 order with reference to exhibits tendered in the writ petition and also taking note of the submission made by the counsel for the petitioner, I find it will not be proper and appropriate for this Court to express any opinion on the merit of Ext.P8 order passed by the court below making the interim order of attachment absolute when the petitioner is having a statutory right to challenge the correctness of that order by way of an appeal W.P.(C).No.28414 of 2009 - O 3 as provided under Order XLIII Rule 1(q) of the Code of Civil Procedure. Whatever that be, when a review petition is filed seeking modification of an order it is incumbent upon the court below to examine the merit of that application irrespective of the question as to the statutory right available to the petitioner to challenge Ext.P8 order. So much so, there will be a direction to the court below to hear and dispose of Ext.P9 application on merits. I make it clear that I am not expressing any opinion on the merits of Ext.P9 application or that of Ext.P8 order. Court below shall dispose of Ext.P9 application within four weeks from the date of receipt/production of a copy of this judgment. Writ petition is disposed of as above. Hand over a copy of the judgment to the counsel for the petitioner and send copy to the court concerned forthwith. S.S.SATHEESACHANDRAN, JUDGE. bkn/-