ROOBI AUGUSTINE Vs. ROY AUGUSTINE

JUDGEMENT

(1.) THE petitioner is the plaintiff in O.S.No.164 of 2009 Sub Court, Payyannur. He prayed for a decree for partition of the plaint A schedule property and for realisation of Rs.12,25,000/- with interest from defendants 1, 3 and 4 charged on the A schedule property excluding properties covered by B schedule, as well as on 'C' schedule. THE petitioner/plaintiff filed an application for attachment before judgment as I.A.No.1587 of 2009. That application was dismissed by the trial court. THE said order was challenged in OP(C) No.734 of 2011, which was disposed of as per Ext.P10 judgment dated 7th March, 2011.

(2.) PARAGRAPH 6 of the judgment in O.P.(C) No.734 of 2011 is quoted below for convenience. "It is not necessary to consider the application on the merits in this Original Petition. Most probably, the court below passed the order impugned taking into account the reliefs prayed for in the suit. Now, the plaintiff says that she is not pressing relief No.(i) and that necessary endorsements will be made on the plaint to that extent. If the plaintiff makes an endorsement on the plaint that she is not pressing relief No.(i), the question whether the petitioner is entitled to an order of attachment before judgment may assume importance. If the petitioner is prepared to make the endorsement referred to above, she would be free to file an application for attachment before judgment, in which case the court shall consider the same on the merits notwithstanding the order dated 20.1.2011 in I.A.No.1587 of 2009."

(3.) IN the Original Petition the petitioner was permitted to take out notice to the respondents by serving notice on their counsel in the court below. A memo dated 31.3.2011 signed by T.K.Saji, Advocate, Payyannur is filed to show that though he offered notice to the counsel appearing for respondents 1 to 3 (defendants 1 to 3), the counsel was not ready to receive the notice. IN the facts and circumstances of the case, the Original Petition is disposed of as follows: The learned Subordinate Judge, Payyannur shall advance I.A.702 of 2011 to a date before closure of the court for summer vacation, hear the counsel appearing for the parties and pass either interim or final order in I.A.No.702 of 2011 in accordance with law. It is made clear that I have not expressed any opinion on the merits of the case.