IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 Ex.FA.No. 45 of 2007() ---------------------- AGAINST THE ORDER DATED 17/08/2007 IN EA.244/07 IN EP.279/05 IN OS.323/2001 of ADDL.SUB COURT,PARAVUR APPELLANT/IST RESPONDENT/DECREE HOLDER K.VASANTHA, AGED 50 YEARS, D/O.KUMARAN, MULLASSERY HOUSE, CHERIYAZHIKKAL KARA, ALAPPATT VILLAGE, KARUNAGAPPILLY TALUK, KOLLAM DIST. NOW RESIDING AT FAMILY WELFARE CENTRE QUARTERS, CHELAMATTOM VILLAGE, OKKAL KARA, KUNNATHUNADU TALUK. BY ADV. SRI.BABU KARUKAPADATH SRI.JAGAN ABRAHAM M. GEORGE RESPONDENTS: CLAIMANT AND JUDGEMENT DEBTOR ------------------------------------------ 1. VARAPUZHA SERVICE CO-OPERATIVE BANK LTD.NO.1582, VARAPUZHA REP. BY ITS SECRETARY, JOSEPH DYNATIOUS. 2. ARAVINDAKSHAN PILLAI, S/O.PURUSHOTHAMAN PILLAI, PADMAVILASAM VEEDU, CHIRAKKAKAMURI, VARAPUZHA VILLAGE. BY ADV. SMT.K.V.RESHMI FOR R,2 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: EX.F.A. 45/2007 ORDER ON I.A. NO.154/2008 & I.A. 2951/2007 // DISMISSED// 6.6.2008 SD/-, P.R. RAMAN, (JUDGE) SD/-, T.R. RAMACHANDRAN NAIR, (JUDGE) // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = Ex.F.A. NO. 45 OF 2007 = = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 6TH DAY OF JUNE, 2008. J U D G M E N T Raman, J. This is an appeal against the order passed in E.A. 244/2007 in E.P. 279/2005 in O.S. 323/2001 on the file of the Additional Sub Court, North Paravur. The said application was allowed by the impugned order since no counter was filed by the appellant herein. There was a delay in this appeal and notice was served through special messenger. None appeared. The delay was condoned and thereafter the appeal was admitted. Still none entered appearance. 2. Learned counsel for the appellant submitted that she is the decree holder in a money suit and she proceeded to execute the decree by filing the execution petition and got an attachment. The bank, contending that they have got prior charge, has filed an application to lift the attachment. According to him, in case there is any prior encumbrance in favour of the Bank that does not in any way stand in the way of the attachment being Ex.F.A. 45/2007 :2: made subject to prior charge in favour of the Bank in view of the provisions contained under Order 21 Rule 58 (3) (c) of the Code of Civil Procedure. It was in these circumstances that a counter as such was not filed because the appellant never thought that the attachment will be totally lifted in the manner in which it is now done. There is force in this contention. 3. In the circumstances, we set aside the order passed by the court below and direct the court below to pass fresh orders. The appellant is given two weeks time to file his counter in the Interlocutory Application and the court shall dispose of the matter after hearing the parties. The appeal is allowed as above. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-