S.R. RATHEESH Vs. S. PONNAIYAN AND OTHERS

JUDGEMENT

(1.) THIS appeal is filed challenging the order made in unnumbered EASR.No. 4901 of 2011 in EP. No. 90 of 2010 in O.S. No. 21 of 2010 by the District Judge, Kanyakumari at Nagercoil. Brief facts of the case are that the appellant is a third party to the suit in O.S. No. 21 of 2010. The 1st respondent herein had instituted the suit on 17.02.2010 for recovery of a sum of Rs. 1,20,00,000/ - The suit was decreed on 13.08.2010 and he filed a petition in E.P. No. 90 of 2010 for recovery of a sum of Rs. 1,40,66,300/ -. In the execution petition, the appellant filed an application to raise attachment in respect of Item No. 17 in the schedule given in the execution proceedings contending that he instituted a suit in O.S. No. 106 of 2011 for recovery of money of Rs. 17,50,000/ - and in that suit, he filed an application I.A. No. 301 of 2011 for attachment before judgment. The District Court, Kanyakumari, had passed an order of attachment in respect of the property in question.

(2.) IT is further submitted that the 1st respondent in O.S. No. 21 of 2010 filed an application for attachment of properties of the judgment debtor and the trial court has ordered attachment of the properties of item Nos. 1 to 17. Subsequent to the decree passed in the suit, he has filed an execution petition to bring the properties for sale for realising the decree amount. In these circumstances, the appellant filed the application to raise attachment in respect of Item No. 17 of the schedule of properties in the execution proceedings. The learned District Judge dismissed the application holding that the application is not maintainable in law. Challenging the order, this appeal is filed.

(3.) LEARNED counsel for the appellant submitted that the appellant had filed the suit for recovery of money against the 2nd respondent and he also filed an application for attachment before judgment in respect of 17th item of the property mentioned in the execution petition and the same was ordered. The learned counsel further submitted that the 1st respondent, who was the plaintiff in O.S. No. 21 of 2010 had taken out an application to attach the property of the 2nd respondent judgment debtor in respect of 17 items of his properties worth about several crores, hence the 1st respondent decree -holder can bring the properties one after another to recover the amount and it is unnecessary to bring all the properties for sale.