THOMMAN MATHAI Vs. ITTUNDAN KUNJUKOCHU
HIGH COURT OF KERALA
Click here to view full judgement.
(1.)This Second Appeal has arisen in a claim suit under O.21 R.63, CPC.
(2.)The facts are as follows:
The defendant had obtained a money decree against the plaintiff's brother in O. S. No. 699 of 1114 on the file of the Munsiff, Meenachil, and in execution thereof attached certain movables that were in the house in which the judgment debtor and the plaintiff live together. By a petition under O.21 R.58, CPC. the plaintiff and his wife claimed those movables as their own. It was dismissed in toto by the executing Court, but was allowed in part by the Travancore - Cochin High Court as regards the things claimed by the plaintiff's wife. The disappointed plaintiff then instituted the present suit for a declaration of his title to the goods attached, for recovery of the value of some of those goods already sold by the executing Court and for the release of the remaining goods from attachment.
The defendant asserted the goods to belong to his judgment debtor and therefore the attachment levied by him valid and unimpeachable by the plaintiff.
The courts below have found the goods to belong to the plaintiff and his brother jointly and dismissed the suit based on a claim of exclusive title in the plaintiff. The plaintiff has therefore come up in Second Appeal.
(3.)Counsel for the appellant contends that, on the findings entered by the courts below, the attachment levied under R.43 of O.21 CPC. has to be lifted and an attachment under R.47 of O.21 has to be levied afresh, if the defendant wants to proceed against the goods. Counsel for the respondent submits that a finding of coownership in the claimant does not necessitate a total release of the goods from attachment and also that the claim suit to which the judgment debtor has not been made a party is not maintainable in law.
Copyright © Regent Computronics Pvt.Ltd.