The court reaffirmed that a co-owner cannot assert rights in a claim petition unless directly affected by an attachment order concerning undivided property interests.

J UDGMENT

Ramachandran Nair , J., The appeal is filed against the order in I.A. No. 196/2012 in O.S. No. 484/2012 on the file of the Sub Court, Kannur. The suit is one for realisation of an amount of Rs. 44 lakhs. The 2nd respondent herein is the sole defendant in the suit and certain items of properties have been attached at the instance of the first respondent/plaintiff. Claiming that the appellant herein has also a right and he is also having joint possession of the property the claim petition was filed.

2. The court below after elaborate consideration of all the aspects held that the appellant has no locus standi to file the application. This finding was rendered after considering the fact that, the 2nd respondent's (defendant) undivided share alone is attached and the appellant's undivided share is not attached. It was also held that the defendant has already sold the undivided shares to 3rd parties who are also not before the court.

3. Learned counsel for the appellant submitted that since the appellant herein is having exclusive possession over the entire extent, the attachment order will affect his rights.

4. Some necessary facts are to be stated for disposal of the appeal. Property including the petition schedule belonged to one Sri. P.M.Presannasenan. He assigned the property as per the registered deed dated 31.1.2009, in favour of three persons viz. the appellant, 2nd respondent herein and one Danesh. It is averred in paragraph 2 of the appeal memorandum that the 2nd respondent herein who is the defendant in the suit executed a Power of Attorney in favour of his wife on 13.12.2011 and in turn she sold the undivided share of the defendant in favour of One Danesh and Sri. T.P.Narayanan.

5. As rightly pointed out by the learned counsel for the respondent the undivided share of the defendant alone is under attachment. It is submitted by the learned counsel that the purchasers from the 2nd respondent's wife being not parties to the claim petition no effective adjudication can be made also.

6. We have considered the rival submissions. Evidence was taken in the matter and after considering various aspects it was found by the court below that the appellant has no locus standi to maintain the claim petition, as his interest over the item II property is not at all affected by the attachment over the share of the defendant. What is highlighted by the learned counsel for the appellant is that he can maintain the petition, being a co-owner on behalf of the co-owners. We are of the view that, in a matter where the claim petition is filed to lift the attachment, a strict view taken by the court cannot be said to be faulty. Apart from that, even the purchasers have not been made a party in the claim petition and the 2nd respondent herein being the sole defendant has chosen to remain ex-parte also. Apart from that the property namely the undivided share of the 2nd defendant alone is attached. Statutory charge is there for the advance paid by 1st respondent. For all these reasons, we dismiss the appeal. No costs.

Sd/-

T.R.RAMACHANDRAN NAIR (JUDGE)