IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 FAO.No. 253 of 2011 ---------------------------- AGAINST THE ORDER DATED 31/07/2010 IN IA 398/2010 IN OS.73/2010 of SUB COURT,KOTTARAKKARA .................... APPELLANT (S): COUNTER PETITIONER: ---------------------------------------------------------- MURALEEDHARAN PILLAI S/O.VASUDAEVAN PILLAI, NILAVIL,(HOUSE NO.PMC 1/302 A, PUANALUR MUNICIPALITY) ARAMPUNNA MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL SRI.T.PRASAD SRI.SAIJU S. RESPONDENT(S): PETITIONER: -------------------------------------------- THOMAS GEORGE,S/O GEORGE THOMAS KARIYILAMANNIL VEEDU, ADUKKALAMOOLA MURI MATHRA PO, KARAVALOOR VILLAGE PATHANAPURAM TALUK, KOLLLAM DISTRICT PIN-691 315.. BY ADV. SRI.JOHN VARGHESE SRI.P.M.JOSEPH SRI.T.K.SURESH BABU THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/10/2011 ALONG WITH FAO 254/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.No.253 of 2011 & F.A.O.No.254 of 2011 ----------------------------------------- Dated, this the 18th day of October, 2011 J U D G M E N T K.M.Joseph, J. These appeals being connected they are disposed of by a common judgment. 2. FAO 253/2011 is filed against the order passed by the Sub Court, Kottarakkara in I.A.No.398/2010 in O.S.No.73/2010 by which the Court lifted the attachment in respect of petition B- Schedule property, but on condition of deposit of Rs.2 lakhs. A- Schedule property will continue under attachment as per the order of the court below. The brief facts are as follows: Appellant is the defendant in a suit for specific performance. There is a further prayer that in case a decree for specific performance is not granted there may be a money decree for Rs.6 lakhs. It is in the said suit that the respondent filed application for attachment of both the petition A and B-Schedule properties. A-Schedule consists of 26.09 Ares. The said property is the property which is the subject matter of the agreement between the parties. B-Schedule is another property belonging to the appellant/defendant. The court below initially granted attachment of both A and B-Schedules. It is upon the application FAO 253, 254/2011 -2- filed for lifting the attachment that the court below has passed the impugned order. 3. The complaint of the appellant would appear to be that this is a case where the court below ought not to have directed the appellant to deposit Rs.2 lakhs as a condition for lifting the attachment of B-Schedule property. B-Schedule is not even the property agreed to be sold, he contends. The learned counsel for the appellant points out that A-Schedule itself is 26.09 Ares of property. Of course, the court below has found that rubber trees in the A-Schedule property has been given for slaughter tapping and after slaughter tapping the value of the rubber property will be reduced at least by 40% and the value of the plaint schedule property is likely to reduce to an average rate of Rs.7,500/- per cent. Noticing that there is a decree sought in the alternative for Rs.6 lakhs with future interest and cost, the court below took the view that B-Schedule which is an extent of 71.20 Ares need not be kept under attachment on condition that the appellant deposits Rs.2 lakhs. 4. Learned counsel for the respondent in FAO 253/2011 which we have admitted would support the order. Learned counsel for the appellant would further contend that the appellant is prepared to furnish security to the satisfaction of the FAO 253, 254/2011 -3- court below and on such event the attachment may be lifted. We feel this as reasonable. Therefore, we dispose of FAO 253/2011 as follows: If the appellant furnishes security to the satisfaction of the court below for the suit claim, the court below will lift the attachment. Proceedings will be completed in this regard within a period of six weeks from the date of production of a copy of this judgment before the court below. 5. FAO 254/2011 arises out of the order in I.A.No.771/2010 filed in the same suit. The said I.A was for an order of injunction restraining the appellant from cutting and removing rubber trees. A-Schedule property is the property agreed to be sold. The court below has allowed the application as follows: “In the result, this IA is partly allowed. Respondent is restrained from cutting and removing rubber trees in the petition A schedule property and from committing any waste in the said property other than doing the ongoing slaughter tapping until the disposal of the suit.” 6. A-Schedule property is admittedly the property which is the subject matter of the agreement between the parties. We notice that the court has permitted the appellant doing ongoing slaughter tapping but has restrained him from cutting and FAO 253, 254/2011 -4- removing rubber trees in the petition A schedule property and from committing waste. Since this is the property which is the subject matter of the agreement we see no reason why we should interefere with this order. Both the learned counsel would submit that the suit itself may be disposed of at the earliest. In such circumstances, we direct the Sub Court, Kottarakkara to dispose of O.S.No.73/2010 finally on or before 30.6.2012. We further make it clear that, the Sub Court will finally dispose of the matter untrammelled by any observations made by it in the impugned order or by this Court in this judgment. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS