Dismissed

The Secretary, Hosdurg Taluk Consumers v. K.K.Vijayakumar and Others

Kerala HC5 Nov 2009WP(C)/22236/2009

Case brief

AI extract

What is this about?

This writ petition challenged an order directing a garnishee to deposit money under CPC Order XXI Rule 46(A). The court held that an appeal under Rule 46(H) is available, disposed of the petition but reserved the petitioner's right to appeal, and ordered exemption of limitation period.

What did the court decide?

Writ petition disposed of; right to appeal reserved under Order XXI Rule 46(H); exemption from limitation period granted.

The Secretary, Hosdurg Taluk Consumers Vs… — Execution and Attachment | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN

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THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931

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WP(C).No. 22236 of 2009(O) -------------------------------------EA.35/2009 IN EP.7/2009 of SUB COURT, HOSDRUG

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PETITIONER(S): ----------------------

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THE SECRETARY, HOSDURG TALUK CONSUMERS CO-OPERATIVE SOCIETY NO.451,KANHANGAD,HOSDURG VILLAGE, KASARAGOD DISTRICT.

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BY ADV. MR.M.GOPIKRISHNAN NAMBIAR

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RESPONDENT(S):

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-----------------------

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1. K.K. VIJAYAKUMAR, REP.BY HIS POWER OF ATTORNEY HOLDER, N.PADMANABHA, AGED 41 YEARS, S/O.KUNHIRAMAN, RESIDING AT NALAPADAN HOUSE, KIZHAKKUMKARA, AJANUR VILLAGE,HOSDURG TALUK.

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2. PUDUKAI VAININGAT SREE VAIRAJATHAN KSHETHRA COMMITTEE, REP.BY ITS SECRETARY, PUDUKAI VILLAGE.

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3. V. BALACHANDRAN,SECRETARY, PUDUKAI VAININGAT SREE VAIRAJATHAN KSHETHRA COMMITTEE,PUDUKAI,PUDUKAI VILLAGE.

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4. C.V. KRISHNAN,TREASURER OF -DO- -DO-

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R1 BY ADV. MR.SURESH KUMAR KODOTH .

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 22236/2009-O

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1: COPY OF THE E.P.7/2009 IN O.S.139/2007 FILED BY 1ST RESPONDENT BEFORE SUB COURT, HOSDURG.

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EXT.P2: COPY OF THE COUNTER IN E.P.7/2009 ON BEHALF OF GARNISHEE.

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EXT.P3: COPY OF THE E.A.35/2009 IN E.P.7/2009 DATED 09/02/2009 FILED BY 1ST RESPONDENT HEREIN BEFORE SUB COURT, HOSDURG.

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EXT.P4: COPY OF THE COUNTER ON BEHALF OF GARNISHEE.

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EXT.P5: COPY OF THE E.A.110/2009 IN E.P.7/2009 FILED BY 1ST RESPONDENT HEREIN SUB COURT, HOSDURG DATED 10/06/2009.

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EXT.P6: COPY OF THE ORDER IN E.A.35/2009 IN E.P.7/2009 SUB COURT, HOSDURG DATED 18/06/2009.

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RESPONDENT'S EXHIBITS:

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EXT.R1(a): COPY OF THE COUNTER TO EXHIBIT P5 APPLICATION.

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EXT.R1(b): COPY OF THE LIST SHOWING THE DETAILS OF AMOUNT DEPOSITED BY THE JUDGMENT DEBTORS.

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EXT.R1(c): COPY OF THE JUDGMENT DATED 31/03/2009 IN WP(C) NO. 4937/2009 OF THIS HONOURABLE COURT.

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EXT.R1(d): COPY OF THE PLAINT IN O.S.139/2007 OF THE MUNSIFF COURT HOSDURG.

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EXT.R1(e): COPY OF THE JUDGMENT IN OS.139/2007 OF THE MUNSIFF COURT, HOSDURG.

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EXT.R1(f): COPY OF THE ORDER OF ATTACHMENT.

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EXT.R1(g): COPY OF THE WRITTEN FORMAT SUPPLIED BY THE SOCIETY TO THE RESPONDENT.

//TRUE COPY//

P.A. TO JUDGE

rs.

S.S.SATHEESACHANDRAN, J.

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W.P.(C).No.22236 of 2009 - O

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Dated this the 5^th day of November, 2009

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J U D G M E N T

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The writ petition is filed by the garnishee who has been directed to deposit the amount in his custody belonging to the judgment debtor to satisfy the decree debt. In response to the notice issued under Order XXI Rule 46(A) of the Code of Civil Procedure, petitioner/garnishee raised his objections by way of a counter. Meanwhile, two execution applications were moved by the respondent/decree holder styling them as filed under Order XXI Rule 46(B) & (C) of the Code of Civil Procedure, to which also the garnishee filed objections. The execution court proceeded to consider the application moved earlier by the decree holder as E.A.No.35 of 2009, which was filed as under Order XXI Rule 46 (A) of the Code of Civil Procedure. However, in passing orders on the above application the court considered the other two execution applications also, which as already indicated had been captioned as under Order XXI Rule 46(B) & (C) of the Code of Civil Procedure by the decree holder. Ext.P6 order directing the garnishee to deposit the attached amount of Rs.12 Lakhs which belonged to the judgment debtor, is challenged in the writ

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W.P.(C).No.22236 of 2009 - O

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petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

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At the time of hearing the learned counsel for the petitioner submitted that as the order passed under Order XXI Rule 46(A) is not amenable to an appeal the only remedy available to the garnishee is to challenge the above order by invoking the visitorial jurisdiction vested with this Court. On the other hand, the learned counsel for the respondent/decree holder submitted that it is evident from Ext.P6 order that the court below has considered the merit of the contentions raised by the garnishee opposing the notice issued under Order XXI Rule 46 (A) of the Code of Civil Procedure and so much so, essentially Ext.P6 was one passed under Order XXI Rule 46(C) of the Code of Civil Procedure. So much so, learned counsel for the decree holder submits that the order is amenable to an appeal as provided under Order XXI Rule 46(H) of the Code of Civil Procedure. The court below has proceeded to pass the order without raising issues adjudicating them as contemplated by the rules, submits the counsel for the petitioner. Even if that be so, that will not be sufficient to hold that it is not an order passed under Order XXI Rule 46(C) of the Code of Civil Procedure. If

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W.P.(C).No.22236 of 2009 - O

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there is any procedural irregularity or noncompliance of any mandatory requirements in passing of Ext.P6 order it is open to the petitioner/garnishee to challenge the propriety and correctness of the order on those grounds in the appeal which is statutorily provided by law. so much so, reserving the right of the petitioner to challenge the impugned order by way of an appeal as provided under Order XXI Rule 46(H) of the Code of Civil Procedure, I dispose this writ petition making it clear that it is open to the petitioner/garnishee to raise all grounds available to him to challenge that order as provided by law. It is further made clear in case any appeal is preferred within a period of two weeks from the date of passing of this judgment the court to which the appeal is preferred shall grant the petitioner/appellant exemption for the period during which the writ petition was prosecuted before this Court as covered under Section 14 of the Limitation Act.

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Writ petition is disposed of as above.

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S.S.SATHEESACHANDRAN, JUDGE.

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bkn/-

The Secretary, Hosdurg Taluk Consumers v. K.K.Vijayakumar and Others

Case brief

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The Secretary, Hosdurg Taluk Consumers v. K.K.Vijayakumar and Others

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