(2012) 282 KLR 220

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI 

TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934 

FAO. No. 281 of 2012 ( ) 

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(AGAINST THE ORDERS ON I.A.NOS.424 & 425/2011 IN OS.NO.89/2008 ON THE FILE OF THE SUB COURT, CHENGANNUR) 

APPELLANT(S)/PLAINTIFF: 

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M.P.PRATHIPAL, S/O. PALANIYAPPAN, PROPRIETOR, PULIMOOTTIL JEWELLERS, CHENGANNUR. 

BY ADV. SRI.G.ANANTHANARAYANAN. 

RESPONDENT(S)/DEFENDANTS 1 TO 3: 

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1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY THIRUVANANTHAPURAM- 695 001.  

2. KRISHNAKUMAR, DYSP, FORT P.O, THIRUVANANTHAPURAM - 695 001. (NOW WORKING AS ASST. COMMISSIONER OF POLICE, KOLLAM). 

3. GOPINATHAN, RTD. POLICE HEAD CONSTABLE, S/O.VELAYUDHAN KILIYATTU VEEDU, KUDAMALOOR VILLAGE, KOTTAYAM TALUK- 686 001. 

R1 BY SENIOR GOVERMNENT PLEADER SRI.PADMARAJ. R2 & R3 BY ADV. SRI.S.SUBHASH CHAND. 

THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 

THOTTATHIL B. RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ. 

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F.A.O No.281 of 2012 

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Dated this the 11th day of December, 2012 

Head Note:-

Civil Procedure Code, 1908 - Order 7 Rule 11 - Criminal Procedure Code, 1973 - Sections 451 and 452 - Cause of Action - Suit is for the movables (gold) or value thereof taken into custody by police in the course of search and seizure etc - Such movables will have to be dealt with under Sections 451 and 452 - the cause of action would arise only on termination of the proceedings in the criminal court, in relation to custody of movables and the period of limitation for such suit would run on the basis of the date of such final decision.

JUDGMENT 

Thottathil B. Radhakrishnan, J. 

This appeal is against the order by which the court below refused to restore a suit dismissed for default. 

2. Having bestowed our anxious consideration to the different aspects of the matter, including the cause of action in the suit, we are of the view that no cause of action actually existed for the institution of the suit from which this appeal arises. We say so because, the suit is for the movables (gold) or value thereof taken into custody by police in the course of search and seizure etc. Primarily, such movables will have to be dealt with under Sections 451 and 452 of Cr.P.C, may be even ultimately by this Court under Section 397 of Cr.P.C. 

3. We may notice the judgments of this Court in Chacko v. Paily [1985 (2) ILR (Kerala) 629] and Kuttappan Achari v. State of Kerala [2005 (1) KLT 273] clearly laying that the cause of action would arise only on termination of the proceedings in the criminal court, in relation to custody of movables and the period of limitation for such suit would run on the basis of the date of such final decision. Therefore, we are of the view that in the instant case, the court below ought to have rejected the plaint by holding that no cause of action is disclosed in it. As a consequence, the plaintiff would have been entitled to refund of the entire court fee paid on the plaint. 

4. In the muddle in which the litigation has reached, we are inclined to take a lenient view and set aside the impugned order to facilitate the court below to act on the plaint in the light of what is stated above. 

In the result, the appeal is allowed. The impugned order is set aside. O.S.No.89 of 2008 will stand restored to file of the Sub Court, Chengannur. The court below will proceed to decide whether it discloses a cause of action or the plaint is liable to be rejected under Order VII Rule 11 of CPC as indicated above. If such an order is passed rejecting the plaint, necessary consequential order of refund of the court fee would also be passed. Parties are directed to mark appearance before the court below on 17.12.2012. 

sd/- THOTTATHIL B. RADHAKRISHNAN JUDGE 

sd/- A.V.RAMAKRISHNA PILLAI JUDGE 

krj.11/12