IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WP(C).No. 37735 of 2009(O) --------------------------------------- (IA.NOS.362/2009& 1320/2009 IN OS.NO.43/2009 OF SUB COURT, PERUMBAVOOR) .................... PETITIONER: ------------------- SUBIN BABY, S/O VARGHESE, THAZHATH VAZHAYIL HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK. BY ADV. MR.RAJESH VIJAYAN. RESPONDENTS: ------------------------ 1. ABRAHAM, S/O PAVU, CHIRACKAL HOUSE, AKANADU KARA, VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK. 2. ANNAM, W/O ABRAHAM, CHIRACKAL HOUSE, AKANADU KARA, VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK. 3. PAUL ABRAHAM, S/O ABRAHAM, CHIRACKAL HOUSE, AKANADU KARA, VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK. 4. JAMES, S/O ABRAHAM, CHIRACKAL HOUSE, AKANADU KARA, VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK. 5. KUNJAMMA, D/O ABRAHAM, CHIRACKAL HOUSE, AKANADU KARA, VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK. R1 TO R5 BY MR.R.D.SHENOY, SENIOR ADVOCATE, MR.S.VINOD BHAT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37735/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 43/2009 ON THE FILE OF THE SUB COURT, PERUMBAVOOR. EXT.P.2: COPY OF THE PETITION FOR ATTACHMENT, I.A. NO. 362/2009 FILED BY THE PETITIONER HEREIN. EXT.P.3: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS. EXT.P.4: COPY OF THE I.A. NO. 1320/2009, PETITION TO RELEASE THE ATTACHMENT FILED BY THE DEFENDANTS. EXT.P.5: COPY OF THE OBJECTION FILED BY THE PETITIONER TO I.A. NO. 1320/2009. EXT.P.6: COPY OF THE ORDER DTD. 21/12/2009 IN I.A. NO. 362/2009 IN O.S. NO. 43/2009 OF THE SUB COURT, PERUMBAVOOR. EXT.P.7: COPY OF THE ORDER DTD. 21/12/2009 IN I.A. NO.1320/2009 IN O.S. NO. 43/2009 OF THE SUB COURT, PERUMBAVOOR. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------- WP(C) No.37735 of 2009 ------------------------------------- Dated 3rd March 2010 Judgment This is a Petition filed under Article 227 of the Constitution, calling in question, Exts.P6 and P7 orders. 2. The petitioner is the plaintiff in OS No.42/09, which is a suit for return of advance money paid to the defendant. It is alleged that there was an agreement of sale dated 12.06.2008, agreeing to sell the plaint schedule property for a sum of Rs.31,000/- per cent. It is claimed that a sum of Rs.25 lakhs was paid as advance. The defendant committed default in the performance of the agreement. For return of the advance money, the suit was laid. The suit was decreed. Along with the suit, the petitioner had filed IA No.362/09 for interim attachment of the plaint schedule property and an interim attachment was ordered. The defendants entered appearance and filed IA No.1320/09 under Order XXXVIII Rule 9 to release the WPC 37735/09 2 attachment of the plaint schedule property and to accept another property as security in the place of the property now attached. 3. The Court below, by Ext.P7, allowed the said IA. In view of the order in that IA, the order of attachment was raised and the property offered by the defendants as security was attached. Aggrieved petitioner has filed this Writ Petition, challenging Exts.P6 and P7. 4. No prejudice is caused to the petitioner by the substitution of the property in attachment. Apart from that, there is a statutory charge on the property by virtue of S.55 (6)(b) of the Transfer of Property Act. The grievance raised by the petitioner is more of imaginary than real. The Court below cannot be found fault with in allowing the defendants to substitute the security when there is no allegation of insufficiency. No grounds are made out warranting WPC 37735/09 3 interference with the order of the Court below and the Writ Petition is dismissed. P.BHAVADASAN, JUDGE sta WPC 37735/09 4