IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 Ex.FA.No. 110 of 2009() ----------------------- AGAINST THE ORDER DATED 09/07/2009 IN EA.NO.14/2008 IN EA.NO.175/2006 IN EA.NO.162/2007 IN EP.NO.46/2006 IN OS.NO.87/2002 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANTS/PETITIONERS/THIRD PARTIES:- ---------------------------------------------------------- 1. MANUEL @ BIJU,AGED 40 YEARS, S/O.K.C.MATHEW,PERUMALIL HOUSE,C.C.NO.IX/275,VELI, FORTKOCHI VILLAGE,KOCHI TALUK,ERNAKULAM DISTRICT. 2. MARY @ JIJI,AGED 44 YEARS, D/O.K.C.MATHEW,PRUMALIL HOUSE,C.C.NO.IX/275,VELI, FORTKOCHI VILLAGE, KOCHI TALUK,ERNAKULAM DISTRICT, REPRESENTED BY HER POWER HOLDER MANUEL @ BIJU, AGED 40 YEARS,S/O.K.C.MATHEW,PERUMALIL HOUSE, C.C.NO.IX/275,VELI,KOCHI TALUK,ERNAKULAM DISTRICT. 3. CHERIAN @ SHAJI,AGED 42 YEARS, S/O.K.C.MATHEW,PERUMALIL HOUSE,C.C.NO.IX/275,VELI, FORTKOCHI VILLAGE, KOCHI TALUK,ERNAKULAM DISTRICT, REP;BY HIS POWER HOLDER MANUEL @ BIJU,AGED 40 YRS, S/O.K.C.MATHEW,PERUMALIL HOUSE,C.C.NO.IX/275,VELI, FORTKOCHI VILLAGE,KOCHI TALUK,ERNAKULAM DISTRICT. 4. THRESIA @ VIJI,AGED 38 YEARS, D/O.K.C.MATHEW,PERUMALIL HOUSE,C.C.NO.IX/275,VELI, FORTKOCHI VILLAGE, KOCHI TALUK,ERNAKULAM DISTRICT, REP;BY HER POWER HOLDER MANUEL @ BIJU,AGED 40 YRS, S/O.K.C.MATHEW,PERUMALIL HOUSE,C.C.NO.IX/275, VELI,FORTKOCHI VILLAGE,KOCHI TALUK,ERNAKULAM DIST. 5. BRIJITH @ JERRY,AGED 33 YEARS, D/O.K.C.MATHEW,PERUMALIL HOUSE,C.C.NO.IX/275,VELI, FORTKOCHI VILLAGE, KOCHI TALUK,ERNAKULAM DISTRICT, REPRESENTED BY HER POWER HOLDER MANUEL @ BIJU,AGED 40 YRS,S/O.K.C.MATHEW,PERUMALIL HOUSE,C.C.NO.IX/27 5,VELI,FORTKOCHI,KOCHI TALUK,ERNAKULAM DISTRICT. BY ADV. SMT.M.K.PUSHPALATHA SMT.SHOBA ANNAMMA EAPEN SMT.MERIL MUTHU P.JOHN EXFA.110/09 - 2 - RESPONDENT(S): RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTOR:- ------------------------------------------------------------ 1. V.K.IBRAHIM,AGED 57 YEARS,S/O.KUNJU MARACKAR,THOPPIL HOUSE,ELOOR NORTH,UDYOGAMANDAL. 2. K.C.MATHEW,AGED 77 YEARS,S/O.CHERIAN, PROPRIETOR OF PIGEE AGENCIES PERUMALIL HOUSE. ADV. SRI.MATHEW SKARIA FOR R1 SRI.K.J.JOSEMON FOR R1 SRI.AGINOV MATHAPPAN FOR R1 SMT.P.K.RADHIKA FOR R2 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ``````````````````````````````````````````````````````` Ex.F.A. No. 110 OF 2009 A ``````````````````````````````````````````````````````` Dated this the 23rd day of October, 2009 J U D G M E N T Joseph, J. The appeal is filed against the dismissal of the claim petition filed by the appellants. 2. We heard the learned counsel for the appellants and the learned counsel for the first respondent and also the learned counsel for the second respondent. 3. Briefly put the case of the appellants is as follows:- The appellants claim title over A Schedule property which consists of about 9 cents and 1 Acre out of B Schedule. According to them, they claim title under Will executed by their mother. The learned counsel for the appellants submits that the appellants may be given an opportunity to adduce evidence. 4. Learned counsel appearing on behalf of the first respondent, on the other hand, would submit that there is no bona fides in this case as this is a case where the appellants have no right over the property and he also would refer to the conduct of Ex.F.A.110/09 : 2 : the parties. 5. It is common case that the decree holder had filed an execution petition as E.P.No.46/2006. It is also not in dispute that the said E.P. came to be dismissed on 02-01-2008 and on the said basis, the order of attachment which had been passed had came to be recalled on the same day. It would appear that the claim petition, which is the subject matter of the impugned order in this case, had been filed when an order of attachment had been passed. Subsequently, the E.P., which was dismissed for default, came to be restored. In the said E.P., the decree holder admittedly filed E.A.No.304/2008 seeking attachment. It would appear that it is the claim petition filed by the appellants which was filed as already noted when the attachment order was in force which was taken up along with E.A.No.304/2008 and the claim petition was rejected by the impugned order and an order of attachment came to be passed on 09-07-2009. In the report sent from the court below, it is stated that the property was attached on 25-07-2009 and a report was filed by the Amin on 28-07-2009. 6. A claim petition can be raised against an order of Ex.F.A.110/09 : 3 : attachment only when there is an order of attachment. In this case at the time when the claim petition was considered apparently there was no order of attachment. In such circumstances, we do not think it is open to the Court to have considered the claim petition. In such circumstances, this appeal is disposed of as follows:- It is open to the appellants to raise a claim against the order of attachment which has been passed on 09-07-2009 which was effected on 25-07-2009 in which case the Court will consider the same untrammeled by anything stated in the impugned order. Sd/- (K.M.JOSEPH, JUDGE) Sd/- (M.L.JOSEPH FRANCIS, JUDGE) aks // True Copy // P.A. To Judge