IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 OP(C).No. 734 of 2011(O) ------------------------ OS.164/2009 OF SUBORDINATE JUDGE'S COURT, PAYYANNUR .................... PETITIONER/PETITIONER-PLAINTIFF --------------------------------------------------- ROOBI AUGUSTINE, W/O.SRI.P.N.RAJUMON, AGED 37 YEARS, PUTHUSSERIL HOUSE, NEAR AMMUPARAMBU, THOTTADA.P.O., KANNUR-7. BY ADV. SRI.S.JAMES VINCENT RESPONDENT(S): CR.PETITIONERS-DEFENDANTS 1 TO 4 ----------------------------------------------- 1. ROY AUGUSTINE, S/O.THE LATE MR.AUGUSTINE AGED 42 YEARS, ANTHEENAT HOUSE, KATTIYAL, NELLIPPARA.P.O., VIA ALAKKODE, KANNUR-670 571. 2. ALEYKUTTY AUGUSTINE, W/O.THE LATE MR.AUGUSTINE, AGED 72 YEARS, ANTHEENAT HOUSE, KATTIYAL, NELLIPPARA.P.O., VIA ALAKKODE, KANNUR-670 571. 3. MATHEW SCARIA ALIAS JOLLY, S/O.THE LATE MR.MATHEW, AGED 53 YEARS, VADAKKEKUNNEL HOUSE, ERUVATTY.P.O., VIA CHAPPARAPADAVU, KANNUR DISTRICT, PIN-670 581. 4. REJIMON ABRAHAM, S/O.ABRAHAM, AGED 46 YEARS, CHEMMASSERIL, THERTHALLI, TALIPARAMBU TALUK, -DO- . ADV. SRI.P.NARAYANAN FOR R1&2 SMT.M.R.JAYALATHA FOR R1&2 SRI.P.V.JOSE FOR R1&2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ---------------------------------- O.P.(C).No.734 of 2011 --------------------------------- Dated this the 7th day of March, 2011 JUDGMENT The petitioner, who is the plaintiff in O.S.No.164 of 2009 on the file of the court of the Subordinate Judge, Payyannur, challenges Exhibit P4 order by which the court below dismissed I.A.No.1587 of 2009 filed by the plaintiff under Rule 5 of Order 38 of the Code of Civil Procedure. 2. The reliefs prayed for in the plaint are the following : "(i) Grant a decree for partition of the A schedule properties excluding the properties covered by B schedule. (ii) Grant a declaration with regard to, and a decree for, realisation of Rs.12,25,000/- with interest at 12% p.a. from 25.12.2007 till payment, against O.P.(C)No.734/2011 2 defendants 1, 3 & 4, charged on them jointly and severally, and on their properties, namely, A schedule properties excluding the properties covered by B schedule, and C schedule properties. (iii) Grant such other reliefs which this Hon'ble Court deems fit and proper in the circumstances of the case, including the costs of the suit from defendants 1, 3 & 4 and their assets, movable and immovable." 3. It is contended that the A schedule property is the co-ownership property in which the plaintiff has a fractional right. The plaintiff alleges that the co-ownership property was sold and out of a portion of the sale proceeds, the first defendant purchased the 'C' schedule property. It is submitted that relief No.(ii) in the plaint relates to the same. I.A.No.1587 of 2009 was filed by the petitioner/plaintiff under Rule 5 of Order 38 of the Code of Civil Procedure to attach before judgment the 'C' schedule property. That O.P.(C)No.734/2011 3 petition was pending from 15.10.2009 onwards. On 20.1.2011, the trial court passed the following order in I.A.No.1587 of 2009. "Heard. The suit is for the purpose of partition of A schedule properties. In the petition the C Schedule is sought to be attached. The suit is of the year 2009. The property is not so far alienated. That itself shows that the apprehension of the plaintiff is without any basis. Hence, I.A. dismissed. No costs." 4. The learned counsel for the petitioner submitted that the order passed by the court below is not really on the merits. It is contended that the fact that the first defendant did not sell the property is not a ground to deny the relief. The counsel for the petitioner also submitted that the petitioner is not interested in pursuing relief No.(i) in the plaint. It is submitted that if so, relief No.(ii) assumes importance and the application for attachment before O.P.(C)No.734/2011 4 judgment could not have been dismissed in the manner in which it was done by the court below. 5. The learned counsel for the respondents submitted that the petitioner is a party to the sale deed and therefore, she cannot get the relief for partition or any other relief. To get the relief of partition, she has to get the sale deed set aside, submits the counsel. 6. It is not necessary to consider the application on the merits in this Original Petition. Most probably, the court below passed the order impugned taking into account the reliefs prayed for in the suit. Now, the plaintiff says that she is not pressing relief No.(i) and that necessary endorsements will be made on the plaint to that extent. If the plaintiff makes an endorsement on the plaint that she is not pressing relief No.(i), the question whether the petitioner is entitled to an order of attachment before judgment may assume importance. O.P.(C)No.734/2011 5 If the petitioner is prepared to make the endorsement referred to above, she would be free to file an application for attachment before judgment, in which case the court shall consider the same on the merits notwithstanding the order dated 20.1.2011 in I.A.No.1587 of 2009. The Original Petition is disposed of as above. K.T.SANKARAN JUDGE csl