The petitioner is the plaintiff in O.S.No.89 of 2004 on the files of the Principal Sub Court, North Paravur as well as the petitioner in E.P.No.180 of 2011 filed therein. The suit was one filed by the petitioner for realisation of money from the respondent, amounting to Rs.2,75,000/- with interest, based on a promissory note executed by the respondent, in favour of the petitioner. The respondent in his written statement denied the borrowal of the said amount from the petitioner. But, thereafter he was set ex parte and case was listed on 09/02/2010 for evidence. But, on that day, the suit was dismissed for default of the petitioner. Thereafter, restoration application was filed by the petitioner as I.A.No.1046 of 2010. On 14/07/2010, the said restoration application was allowed by the court below on payment of cost of Rs.1,000/-. The cost was paid on 16/07/2010 by the petitioner and the suit was restored on 16/07/2010. In the suit, the petitioner sought for attachment before judgment of the property of the defendant under Order 38 R.5 vide I.A.No.2064 of 2004. The court below ordered attachment of the said property having an extent of 20 cents with a residential building therein. The attachment was effected on 26/08/2004 and a report has been submitted before the court to that effect.

2. During the E.P. proceedings, the respondent filed objection stating that the respondent had alienated the property attached before judgment to one Nisha. But, the date of sale is not mentioned in the objection. According to the respondent, the property under attachment, which had been sold away to Ms. Nisha is not liable to be sold in execution of the decree as the same is in the possession of a third party. After considering the rival contentions, the court below passed the order stating that the property to be sold in execution of the decree does not belong to judgment debtor and the judgment debtor had sold away the property to one Nisha when there was no attachment. Hence, the property is not liable to be sold in execution of the decree. Hence, the case was posted for further steps. The legality and propriety of this order is under challenge in this original petition.

3. The learned counsel for the petitioner submits that the order under challenge is illegal and unsustainable in view of the legal position settled by this Court in the decision in Ulahannan Chacko v. Mathai (1986 KLT 301) and Vareed Jacob v. Solaman (2001 (3) KLT 128). The sum and substance of the argument advanced by the learned counsel for the petitioner is that, by the restoration of the original suit, the interim order passed therein also would stand restored automatically.

4. Per contra, the learned counsel for the respondent advanced arguments to justify the impugned judgment under challenge. The learned counsel submits that the property was sold when the suit was dismissed for default. The short question that arises for consideration in this petition is, whether there is any illegality or impropriety in the impugned order dropping the proceedings against the property in execution of the decree on a finding that there was no attachment when the property was sold to a third party. Going by the above decisions, it could be seen that as rightly submitted by the learned counsel for the petitioner, once the suit is restored, the interlocutory orders passed therein would also stand revived and continued in force. In Ulahannan's case (Supra), this Court held that-

"when restoration of the suit or appeal is allowed, the parties are to be restored to the same position in which they were situated, when the court dismissed the suit or appeal. Then on restoring the appeal dismissed for default, the ancillary matters disposed of in consequence of such dismissal must also get restored and the consequential orders passed on dismissal of the suit or appeal should automatically get vacated".

The above proposition was followed in Vareed's case (supra) also.

5. Coming to the facts