Kerala High Court
Valsamma Thomas vs M.P.Abdulrahiman
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
MONDAY, THE 21ST DAY OF OCTOBER 2013/29TH ASWINA, 1935
OP(C).No. 3442 of 2013 (O)
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IN OS 147/2013 OF SUB COURT, OTTAPALAM
PETITIONER(S):
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1. VALSAMMA THOMAS
AGED 65, W/O. THOMAS, AREATH HOUSE
HOUSE NO. X2, DEEPTHI NAGARA, MUTTAMBALAM VILLAGE
KOTTAYAM - 686 004.
2. SOUMYA THOMAS,
AGED 30, D/O. THOMAS, AREATH HOUSE
HOUSE NO. X2, DEEPTHI NAGARA, MUTTAMBALAM VILLAGE
KOTTAYAM - 686 004.
BY ADVS.SRI.K.JAYAKUMAR (SR.)
SRI.JOHN JOSEPH VETTIKAD
SRI.JOSEPH ABRAHAM (KOTTAYAM)
SRI.C.JOSEPH JOHNY
RESPONDENT(S):
----------------------------
M.P.ABDULRAHIMAN
PERUMBULLY,PERIMBADARI P.O, MANNARKAD NO.1 VILLAGE
MANNARKAD TALUK, PALAKKAD DISTRICT - 678 582.
BY ADV. SRI.BIJU ABRAHAM
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21-10-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 3442 of 2013 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT-P1- TRUE COPY OF THE PLAINT IN O.S 147/2013 OF THE SUB COURT,
OTTAPALAM.
EXHIBIT-P2- TRUE COPY OF THE APPLICATION IN I.A 972/2013 IN O.S 147/2013 OF
THE SUB COURT, OTTAPALAM.
EXHIBIT-P3- TRUE COPY OF THE ORDER DATED 08/04/2013 IN I.A 972/2013 IN O.S
147/2013 OF THE SUB COURT, OTTAPALAM.
EXHIBIT-P4- TRUE COPY OF THE OBJECTION TO I.A 972/2013 IN O.S 147/2013 OF
THE SUB COURT, OTTAPALAM.
EXHIBIT-P5- TRUE COPY OF THE ORDER DATED 10/09/2013 IN I.A 972/2013 IN O.S
147/2013 OF THE SUB COURT, OTTAPALAM.
EXHIBIT-P6- TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE
COMMISSIONER IN O.S 147/2013 OF THE SUB COURT, OTTAPALAM.
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.A. TO JUDGE
VPV
P.N.RAVINDRAN, J.
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O.P.(C)No.3442 of 2013
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Dated this the 21st day of October, 2013
JUDGMENT
The petitioners are the plaintiffs in O.S.No.147 of 2013 on the file of the Court of the Subordinate Judge of Ottappalam. The respondent is the sole defendant therein. The petitioners have in O.S.No.147 of 2013 prayed for the following reliefs:-
"A. Direct the defendant by an order of Mandatory Injunction to give adequate and sufficient lateral support to the Plaint schedule item no.1 & 2 properties on its north and from where earth has been excavated and removed by the Defendant, by constructing necessary concrete retainer wall as may be indicated by a qualified competent engineer deputed by this Hon'ble Court, and also to restore the original condition of the Plaint schedule property and in case the Defendant fails to do so allow the Plaintiffs to do the said work under the supervision of this Hon'ble Court and to realize the cost thereof from the Defendant and his assets.
B. Restrain the Defendant or anybody under him from further digging or excavating the earth from the subjacent and adjacent land that lies to the north of the Plaint schedule property and belonging to the Defendant. C. Allow the plaintiffs to realize damages of Rs.2,01,000/- as per the statement furnished below from the Defendant and his assets."
2. The petitioners have in the plaint averred that the O.P.(C)No.3442 of 2013 2 defendant who owns properties lying to the north of the plaint schedule properties, has illegally excavated his land adjacent to the northern boundary of the plaint schedule property to a depth of about 15 meters and for a length of about 56 meters, that as a result thereof the north eastern portion of plaint schedule item No.1 has subsided for a length of about 6 meters and a width of about 3 meters. They have also averred that the soil thus removed was illegally appropriated and removed by the defendant to obtain unlawful gain. The plaintiffs have in the plaint estimated the damage caused on account of the illegal and negligent conduct of the defendant in digging and excavating the earth at Rs.2,00,000/- and have paid the court fee for that relief in terms of section 22 of the Kerala Court Fees and Suits Valuation Act, 1959. They have also averred that the defendant who has removed the natural support that was being rendered by the sub-adjacent and adjacent soil which is very much essential and necessary for the safe and convenient enjoyment of the plaint schedule properties is liable to give adequate lateral support to the plaint schedule properties and that he is also liable to be restrained by a permanent prohibitory injunction from further excavating his land lying adjacent to the plaint schedule property.
3. Along with the plaint, the petitioners filed I.A.No.972 of O.P.(C)No.3442 of 2013 3 2013 under Order XXXVIII rule 5 read with section 151 of the Code of Civil Procedure for a conditional order of attachment. Paragraphs 6, 7, 8 and 9 of the affidavit filed in support of the said application are extracted below for easy reference:-
"6. Due to the illegal, negligent, unthoughtful and unscrupulous conduct of the Defendant, the north eastern portion of Plaint schedule item no.1 property got subsided to a length of about 6 mt. and to a width of about 3 mt. and to a depth of about 6 mts. Even that soil was illegally appropriated and removed by the Defendant to obtain unlawful gain. Because of the illegal conduct the surface of the Plaint schedule properties became unstable and unsafe and we are not in a position to use or enjoy the said land and this position is continuing. The damage caused due to the illegal and negligent conduct of the Defendant in digging and excavating the earth is estimated at Rs.2 lakhs. Apart from that the cost for restoring the lateral support of the Plaint schedule properties may approximately come to more than Rs.15 lakhs.
7. The defendant on getting information about the legal proceedings that may be initiated against him is making hasty preparations to alienate his tangible assets with the intent to obstruct and delay the execution of the decree that may be passed against him in the proceedings. I personally came to know of this from Sri.Kunjumaitheen, Malanchira, Vijakurishi, Mannarkkad.
8. To our knowledge and information the property scheduled to the application filed along with this affidavit is the only tangible assets of the defendant. If the defendant happens to do any such illegal acts, we will be put to irreparable injury, loss and hardship and the suit itself will become infructuous and we will not be in a position to realize the damages on the cost that may be awarded in this case O.P.(C)No.3442 of 2013 4 which we approximately estimated at Rs.18,00,000/- (Eighteen lakhs).
9. In the above circumstance, to meet the ends of justice, the defendant may be called upon to furnish sufficient security for the amounts that may be sufficient to satisfy the decree that may be passed in this case and also conditionally attach the property scheduled hereto and in case the defendant fails to furnish sufficient security the order of conditional attachment may be made absolute."
However the relief sought in I.A.972 of 2013 reads as follows:-
"For the reasons stated in the accompanying affidavit it is humbly prayed that this Hon'ble Court may be pleased to direct the defendant furnish sufficient security the order of conditional attachment may be made absolute."
4. The suit and the application for attachment before judgment came up before the court below on 8.4.2013. On that day the trial court passed the following order on the application for attachment:-
"Heard the learned counsel for petitioner. Perused records. On a perusal of the plaint, the affidavit filed in support of the petition and the documents produced, I am satisfied that the respondent, with intent to delay the execution of the decree which may be passed against him, is about to dispose of the petition schedule property. Hence the respondent is directed to furnish security for the plaint claim of Rs.18,00,000/- (Rupees eighteen lakhs only) or to appear and show cause why it shall not be done. In the meanwhile, there will be a conditional attachment of the petition schedule property.
Issue urgent notice to respondent. For return O.P.(C)No.3442 of 2013 5 of notice to 26-9-2013."
5. Along with the plaint, the petitioners had also filed I.A.No.973 of 2013 for the appointment of an Advocate Commissioner to inspect the plaint schedule property. The Advocate Commissioner appointed by the trial court inspected the plaint schedule property on 8.4.2013 and filed Ext.P6 report dated 20.9.2013. Along with that report he also produced a rough plan showing the location and lie of the plaint schedule property and the properties lying adjacent to it, six photographs showing the northern boundary of the plaint schedule property and the surrounding areas and a compact disk. In paragraph 4 of the said report the Advocate Commissioner has reported that soil has been removed from the land belonging to the defendant, all along the northern boundary of the plaint schedule property. He had also reported that soil had been removed for a length of about 59 meters, for a depth ranging from 13.5 meters to 15 meters and that soil had subsided on a portion of the plaint schedule property for a length of 30 meters. He also reported in paragraph 6 that to estimate the expenses for restoring the lateral support, the services of an expert engineer are required.
6. In the affidavit filed in support of the application for attachment the petitioner had averred that the respondent/ O.P.(C)No.3442 of 2013 6 defendant is taking hasty steps to alienate his tangible assets with intend to obstruct and delay the execution of the decree that may be passed against him in the suit and that the power of attorney of the plaintiffs who had sworn to the affidavit filed in support of the application came to know of this from Sri.Kunjumaitheen, Malanchira, Viyyakurishi, Mannarkkad. In his objections, a copy of which is on record as Ext.P4, the respondent/defendant contended that as a result of the excavation carried on by him, the lateral support of the plaint schedule property has not been lost and that as a result of quarrying of laterite from his property, the lateral support to the plaint schedule property will not be lost. He also questioned the averment in the affidavit filed in support of the application that a sum of Rs.15,00,000/- would be required to restore lateral support to the plaint schedule property. The court below considered the rival contentions and by Ext.P5 order modified the order of conditional attachment passed by it on 8.4.2013 and called upon the defendant to furnish security for the sum of Rs.2,00,000/- and costs of the suit. The court below held that though under order XXI rule 32(5) of the Code of Civil Procedure, the expenses incurred in the process of execution of a decree for mandatory injunction in the event of such a decree being granted can be recovered, an order of attachment before judgment cannot O.P.(C)No.3442 of 2013 7 be passed in respect of the expenses to be incurred for executing a decree for mandatory injunction of the kind prayed for by the plaintiffs. The court below accordingly modified Ext.P3 order of conditional attachment passed by it on 8.4.2013 and called upon the defendant to furnish security for the sum of Rs.2,00,000/- and costs. The plaintiffs have aggrieved thereby filed this original petition under Article 227 of the Constitution of India.
7. I heard Sri.K.Jayakumar, learned Senior Advocate appearing for the petitioners and Sri.Biju Abraham, learned counsel appearing for the respondent. Sri.K.Jayakumar, learned Senior Advocate appearing for the petitioners contended that the petitioners have in the plaint prayed for a mandatory injunction directing the defendant to provide adequate and sufficient lateral support to the plaint schedule property by constructing necessary concrete retaining wall as indicated by a qualified and competent engineer deputed by the court and to restore the original condition of the plaint schedule property, that in the alternative, the plaintiffs have prayed that in case the defendant fails to do so, the plaintiffs may be allowed to have the said work done under the supervision of the court and to realise the cost thereof from the defendant and his assets, that in addition to the relief of mandatory injunction, the plaintiffs have also prayed for realisation of the sum of O.P.(C)No.3442 of 2013 8 Rs.2,00,000/- by way of damages as a result of the excavation carried out by the defendant, that in the event of the suit being decreed, apart from the liability to pay the sum of Rs.2,00,000/- or such part thereof as may be decreed by the court below, the defendant would also be liable to construct a retaining wall and in the event of his failure, the plaintiffs will certainly be entitled to have the retaining wall constructed and realise the expenses from the defendant and therefore, the court below erred in proceeding on the basis that future expenditure which the plaintiffs will have to incur in the event of the suit being decreed for mandatory injunction cannot be reckoned for the purpose of an order of attachment and that the said finding entered by the court below is liable to be set aside. The learned Senior Advocate appearing for the petitioners contended with particular reference to the averments in the affidavit filed in support of I.A.No.972 of 2013 that the plaintiffs have estimated the cost of providing lateral support to the plaint schedule property, that apart from merely disputing the said statement as baseless, the defendant has not disputed the fact that he had excavated soil at least for the purpose of mining laterite stones and therefore, the court below erred in modifying the conditional order of attachment passed by it and directing the defendant to furnish security only for the sum of Rs.2,00,000/- and costs. O.P.(C)No.3442 of 2013 9
8. Per contra, Sri.Biju Abraham, learned counsel appearing for the respondent contended that the plaintiffs have not in the prayer portion of I.A.No.972 of 2013 prayed for an order directing the defendant to furnish security for the sum of Rs.18,00,000/-, that the prayer in the application is not in tune with the averments in the affidavit and therefore, the court below was perfectly right in modifying the conditional order of attachment earlier passed by it on 8.4.2013. The learned counsel also contended that the suit has not been properly valued and the plaintiffs have not paid court fee for the sum of Rs.18,00,000/- much less the sum of Rs.15,00,000/-, that they have also not prayed for damages in addition to or in substitution of the decree for mandatory injunction and that the only relief sought in the plaint in terms of money is a decree for Rs.2,01,000/-, that the suit has not been properly valued and that the court below was perfectly right in calling upon the defendant to furnish security only for the sum of Rs.2,00,000/-. The learned counsel also placed reliance on the decision of the Division Bench of this Court in Joseph Clement v. Leelamma Xavier & Another (1970 KLT 451) and the decision of the Calcutta High Court in ICICI Bank Ltd. v. Limtex (India) Ltd. (AIR 2011 Calcutta 111) and of the Uttaranchal High Court in Chief Engineer, Central Zone Telecommunication Civil, Lucknow & Others v. O.P.(C)No.3442 of 2013 10 M/s. Dayal Construction Co. (AIR 2005 Uttaranchal 34) to contend that the plaintiff cannot under the guise of asking for a mandatory injunction for the purpose of having a retaining wall constructed at a cost of Rs.15,00,000/- value that relief under section 27(c) of the Act and pay a court fee of only Rs.500/-. The learned counsel contended that the claim of the plaintiffs that they should be allowed to recover the expenses for putting up a retaining wall from the defendant virtually amounts to a claim for money and in the absence of a relief for recovery of the sum of Rs.15,00,000/- towards the cost of putting up the retaining wall, the plaintiffs cannot seek a conditional order of attachment in respect of the expenses likely to be incurred for putting up the retaining wall.
9. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record and the lower court records. The power of attorney of the plaintiffs has in paragraph 7 of the affidavit filed in support of I.A.No.972 of 2013 positively averred that the defendant is taking steps to alienate his tangible assets with intend to obstruct and delay the execution of the decree that may be passed against him in the suit. He had also disclosed the source of information based on which the said averment was made. The defendant did not in his objections deny the said O.P.(C)No.3442 of 2013 11 averment. In fact no such denial was brought to my notice by Sri.Biju Abraham, learned counsel appearing for the respondent/ defendant. The power of attorney of the plaintiffs had positively averred in the affidavit filed in support of the application that the cost of restoring the lateral support of the plaint schedule property will come to more than Rs.15,00,000/-. The Advocate Commissioner appointed by the trial court who inspected the plaint schedule property on 8.4.2013, has in paragraphs 3 to 7 of his report stated as follows:-
"3. %Hc^OIG_5 1_2 HdOm UY5Z fD^GafD^Ga5_?AaK UY5{^Cm. %Hc^OIG_5 UY5 {_W )ZfMGm 5_?AaK %Hc^OA^xaf? L^A_ UY5 {^Cm %Hc^OIG_5UY5{af? fDAaM^7". ?_ UY5Z fDAa H_Ka" U?gA^Gm f:x_Em XmE_D_ f:OnaKa. %Hc^OIG_5UY5{af? U?AaM^7" dID_AU5^VfMG UY5{^Cm. 2_)0 HdOm UY5{af? U?Am /D^Ha" M^7"
%La X^Y_Lnm .K^{af?eXmE\N^Cm.e(
XmE\Ua" fDAaH_Km U?gA^Gm f:x_Ea 5_?AaKa.
4. %Hc^OIG_5UY5{af? U?AaM^7"
dID_Oaf? UY5{_f\ NHm Na]aUX H`A"
f:Oq_x_AaKa. 'DaNb\" %Hc^OIG_5UY5{af? U?Am /D^Ha" '?_Oa5Oa" '?_O^X )U X^icDOaN^O_ H_WAaKa. %Hc^OIG_5 1_)0 HdO_fa U?Am 30 N`xV M^7" 0.90 N` NaDW 1.5 N` U`D_ Ufx NHm '?_E_GaIm. 1_)0 HdO_fa L^A_ 16 N`xya" 2_)0 HdO_fa 13 N`xya" XmE\J_fa U?AaM^7"
dID_Oaf? XmE\JaH_Ka" NHm H`A" f:Oq_x_AaKa.
2_)0 HdO_fa U?AaM^7" L^A_ 20 1/2 N`xV XmE\J_fa U?Am %La X^Y_Ln_fa UY5{^Cm.
'U_f? H_Km NHm H`A" f:Oq_G_\o^JD^Cm.
%Hc^OIG_5UY5{af? U?AaM^7" NHm H`A"
f:OqD_fa &]" 13 1/2 N`xV NaDW 15 N`xV
UfxO^Cm. U?AaU XmE\JmH_Km NHm H`A"
f:OqD_H^W %Hc^OIG_5UY5{af? \^xyW XgM^VGm Na]aUH^O_ HWm?fMG_x_AaKa.
O.P.(C)No.3442 of 2013 12
5.e%Hc^OIG_5 UY5{af? U?Am 59 N`xgy^{"
H`{J_\a" 13 1/2 NaDW 15 N`xV &]J_\a" )U XmE\fJ NHm Na]aUH^O_ H`A" f:Oq_x_AaKa.
'D_We%Hc^OIG_5Oaf? 30 N`xV H`{J_\aU
M^7Jm 3 %?_ NaDW 5 %?_ Ufx NHm
'?_EagI^O_GaUD^O_ 5^C^X 5]_Ea.
6.e%Hc^OIG_5O_W H_Ka" '?_EaU`C
NH_faOa" \^xyW XgM^VGm HWm?fMGD_Km \^xyW
XgM^VGm IaHXmE^I_A^X UxaK :_\Ua"
5CA^A^X 2xa .F_H`Oyaf? XY^O"
&UVcN^Cm.e%\o^JIf" HWm?fN^ :_\fU^
Vx_O^O_ 5CA^A^X 5]_OaKD\o. %D_H^W
HWm?5CAm fDOn^y^A_ gL^G_M_A^X
.F_H`Oyaf? XY^O" %HaUF_:na DxaU^X
5WIHO^gUID^Cm.
7. dID_ dID_5{af? UY5{_W H_Ka"
NfH?aJD_fa fDAm %?_M^7J^O_ f:yaD^O_
I?UaI^A_O_GaIm. 7 to 8 %?_ )Ox" N^dDfN
)Ub.e'Dm NH_?_O^D_x_A^X XY^O_AaKD\o. 15
N`xgy^{" )OxJ_\^Cm. 'gM^Z \^xyW XgM^VGm
'\o^fD %Hc^OIG_5 UY5Z H_WAaKDm. "
10. Shorn of details, the Advocate Commissioner's report is to the effect that for a length of 59 meters, soil has been excavated for a depth of 13.5 meters to 15 meters along the northern boundary of the plaint schedule property and that the lateral support of the plaint schedule property has been lost. Though the defendants had in paragraph 3 of Ext.P4 objections filed by him to the application for attachment denied the plaint averments as factually incorrect, the stand taken by him in paragraph 3 makes it evident that he had excavated soil from his own lands. His case in paragraph 3 of the objections is two fold. One is that if at all soil has been removed from his lands it was removed 8 years back long O.P.(C)No.3442 of 2013 13 before he purchased it and that after such removal, a retaining wall had been constructed for a height of about 12.5 ft. He had further averred that the plaint schedule property and the adjoining lands are fit for mining of laterite and that as a result of mining or excavation of laterite stones, the lateral support of the plaint schedule property would not be lost. It is evident from the averments in the counter affidavit filed by the defendant that he had virtually admitted having excavated laterite from his lands lying adjacent to the plaint schedule property. He had also not denied and disputed the fact that he is taking steps to alienate the plaint schedule property. The court below was therefore perfectly justified in passing a conditional order of attachment. The defendant has admittedly not challenged the said conditional order of attachment though later it was modified at his instance by Ext.P5 order passed on 10.9.2013. When it passed the conditional order of attachment, the trial court directed the defendant to furnish security for the sum of Rs.18,00,000/- or to appear and show cause why it shall not be done. The defendant appeared and showed cause by filing objections wherein he virtually admitted the fact that he is mining laterite stones from his property and that as a result of such mining, lateral support would not be lost. The trial court modified the order of conditional attachment and called upon the defendant to furnish O.P.(C)No.3442 of 2013 14 security only for the sum of Rs.2,00,000/- on the ground that the expenses likely to be incurred for putting up a retaining wall in the event of the suit being decreed cannot be taken into account for the purpose of passing a conditional order of attachment. In my opinion, the view taken by the trial court cannot be sustained. It is now well settled by the decisions of the Apex Court and this Court that the sole object behind an order levying attachment before judgment is to give an assurance to the plaintiff that the decree if made in his favour will be satisfied and to prevent the decree becoming infructuous for want of property available with the defendant. It is also now well settled by a series of decisions by the Apex Court and this Court that an order of attachment under Order XXXVIII rule 5 is preventive and not punitive.
11. In the instant case, the petitioners have prayed for a mandatory injunction directing the defendant to restore the plaint schedule property to its original state and to provide lateral support to it. If the Advocate Commissioner's report were to be accepted, a retaining wall will have to be put up for a length of about 59 meters to a height varying from 13.5 meters to 15 meters. It would certainly involve considerable expenditure. The expenditure can be estimated only after an expert inspects the property and makes an estimate. In the event of the suit being decreed, the defendant will O.P.(C)No.3442 of 2013 15 have to either carry out the work at his own expense in accordance with the direction issued by the court which in turn will certainly be based on the report of the expert. In the event of default, the plaintiffs will be entitled to have the retaining wall constructed and recover the expenditure incurred by them from the defendant and his assets. In the light of the admitted fact that the defendant has not denied the averment in paragraph 7 of the affidavit filed in support of the application for attachment that he is making hasty preparations to alienate his tangible assets with a view to obstruct and delay the execution of the decree that may be passed in the suit, the court below was perfectly justified in passing a conditional order of attachment and even maintaining it though it called upon the defendant to furnish security only for the sum of Rs.2,00,000/- being the amount claimed by way of damages under relief C. The court below however lost sight of the fact that if the decree for mandatory injunction that may be passed in the suit is not complied with by the defendant, the plaintiffs will be free to have the retaining wall constructed at their expense and to recover it from the defendant and that in that event the plaintiffs will be left without any remedy to recover the amount thus spent by them. The finding entered by the court below that the expenses incurred for execution of the decree for mandatory injunction cannot be included in a claim O.P.(C)No.3442 of 2013 16 for attachment before judgment, notwithstanding the fact that the expenses incurred on that account can be recovered under Order XXI rule 32(5) of the Code of Civil Procedure is in my opinion plainly untenable and cannot be sustained. Apart from the said reason, the court below has not given any reason to modify the conditional order of attachment passed by it on 8.04.2013. In such circumstances and in the absence of a challenge by the defendant to the conditional order of attachment, I am of the opinion that the petitioners are entitled to succeed and to have the order of conditional attachment passed on 8.4.2013 on I.A.No.972 of 2013 made absolute.
I accordingly allow the original petition, set aside Ext.P5 order dated 10.9.2013 on I.A.No.972 of 2013 in O.S.No.147 of 2013 and make the conditional order of attachment passed by the court below on the said application on 8.4.2013 absolute.
Sd/-
P.N.RAVINDRAN JUDGE vpv