IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 WP(C).No. 34946 of 2011(P) ------------------------------------ PETITIONER(S): ------------------------ T.D. BABU, S/O DEVASYA, AGED 37 YEARS,THEKKUMALAYIL HOUSE, NADAVAYAL VILLAGE, SULTHAN BATHERY TALUK. BY ADV. SRI.C.A.CHACKO RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNEMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE SECRETARY TO GOVERNEMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3. THE DISTRICT COLLECTOR, WAYANAD - 673 592. 4. TOMY, S/O.LATE MATHEW, NALLANTHADATHIL HOUSE, NADAVAYAL, KAPPATHODE, BATHERY TALUK - 673 592. R1 TO R3 BY GOVERNMENT PLEADER SMT. M.J. RAJASREE (SENIOR). THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV WPCNO.34946/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF SALE DEED NO.779/1/08. EXT.P2: COPY OF ORDER IN C.M.P.NO.3613/11 IN C.C.NO.311/11 DATED 23.8.11. EXT.P3: COPY OF REPRESENTATION DATED 25.9.11. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE VPV ANTONY DOMINIC, J. --------------------------------------- W.P.(C) No. 34946 of 2011 ---------------------------------------- Dated this the 23rd day of December, 2011 JUDGMENT According to the petitioner, by Ext.P1 sale deed executed on 1.4.2008 he purchased 0.3318 hectors of land comprise in Re-survey No. 532/2 block No.7 of Nadavayal Village of Sulthan Bathery Taluk. It is his case that subsequently he came to know that the property was attached by Judicial First Class Magistrate Court-I, Sulthan Bathery. It was even later that the 4th respondent, the vendor of the property appeared before the court and was enlarged on bail on 6.7.2011. He made an application for lifting attachment. In this writ petition what is sought for by the petitioner is a direction to the 1st respondent to consider such an application. 2. That case was taken by the learned counsel for the petitioner relied on order of this Court in M.C. Babu V. W.P.C. No. 34946 OF 2011 -2- State of Kerala and Another (2011 (3) KLJ 616) where it was held thus. “When the property attached is placed at the disposal of the Government, it does not pass title over the property to the Government. There is no vesting of title with the Government but it only gives the Government the right for enjoyment of income from the property during continuance of attachment. By virtue of sub.sec(2) of Sec.85 of the Code the Government has the power to sell the attached property subject to the conditions mentioned therein. On such sale, title to the attached property passed to the purchaser and in the circumstances stated in sub sec.(3) of Sec.85, the Court retains power to direct payment of the sale proceeds less the costs incurred in consequence of the attachment, to the person proclaimed. Since the attached property is at the disposal of the Government and since, I found that the power under sub sec.(3) of Sec.85 of the Code cannot any more be exercised, it is open to the petitioner to request the Government to release the property, if it is not already sold and the residue in case any portion is sold or the sale proceeds to him. If the Government are satisfied, that the plea of the petitioner is correct and that the justice of the case requires that the property (or the residue) or sale proceeds less costs incurred, as the case may be should be restored to the petitioner, it is open to the Government to do accordingly (see also Gurunath Narayanan Betgori In Re, supra) I leave petitioner to that remedy. If petitioner makes such a request to the Government in that regard, the Government shall look into the matter and pass appropriate order as circumstances warranted.” 2. In the light of the principles thus laid down by this W.P.C. No. 34946 OF 2011 -3- Court in the judgment referred to above this writ petition is also disposed of directing that the 1st respondent shall consider Ext.P3 representation duly adverting to the aforesaid principles and orders shall pass on Ext.P3. This shall be done, as expeditiously as possible, at any rate, on receipt of a copy of this judgment along with a copy of this writ petition. ANTONY DOMINIC, JUDGE. Kp/-