Disposed

M/S. Star Shipping Company v. M/S. Puthuve;L Associates

Kerala HC11 Aug 2016OP(C)/2946/2015

Case brief

AI extract

What is this about?

Under Article 227, the Court kept execution proceedings in abeyance for three weeks to allow the petitioner time to file an appeal, directed the bank to retain the attached amount for three weeks while permitting withdrawal of the balance, and clarified that the petitioner's right to appeal remains unaffected.

What did the court decide?

Executed proceedings kept in abeyance for 3 weeks; attached bank amount to remain frozen for 3 weeks; balance permitted to be withdrawn; petitioner's right to appeal preserved.

M/S. Star Shipping Company Vs M/S. Puthuve;L… — Execution and Attachment | Kerala HC (2016)

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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 K.RAMAKRISHNAN

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THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938

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OP(C).No. 2946 of 2015 (O)

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EP.NO.149/2014 IN SUB COURT, KOCHI

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PETITIONER(S):

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M/S. STAR SHIPPING COMPANY, LICENSED CUSTOMS HOUSE AGENT, DLB BUILDING, NEAR CANARA BANK, INDIRA GANDHI ROAD, WILLINGDON ISLAN, KOCHI-3, REPRESENTED BY ITS MANAGING PARTNER A.SHIHABUDEEN.

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BY ADVS.SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN SRI.NELSON JOSEPH SRI.M.D.JOSEPH

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RESPONDENT(S):

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M/S. PUTHUVEL ASSOCIATES, GLASS AND PLYWOOD MERCHANTS, K.M.C., 32/336 C, NEAR KSRTC, NH 47, KAYAMKULAM, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, M/S.ORIENTAL INSURANCE CO.LTD., THORUGH ITS REGIONAL MANAGER, PIN 690502.

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BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2946 of 2015 (O) ---------------------------

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APPENDIX

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PETITIONER(S)' --------------	EXHIBITS ---------
EXHIBIT-P1:	TRUE COPY OF THE PLAINT O.S.173/2010 BEFORE THE SUB COURT, MAVELIKKARA.
EXHIBIT-P2:	TRUE COPY OF THE E.P.149/2014 IN O.S.173/2010.
EXHIBIT-P3:	TRUE COPY OF THE PETITION I.A.507/2015 IN O.S.173/2010 TO SET ASIDE EX PARTE DECREEE.
EXHIBIT-P4:	TRUE COPY OF THE PETITION I.A.506/2015 IN O.S.173/2010 TO CONDONE THE DELAY.
EXHIBIT-P5:	TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENT TO THE PETITION TO CONDONE THE DELAY.
EXHIBIT-P6:	TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENT TO THE PETITION TO SET ASIDE EX PARTE DECREE.
EXHIBIT-P7:	TRUE COPY OF THE ORDER OF ATTACHMENT DATED 27.11.2015 PASSED BY THE COURT BELOW.
RESPONDENT(S)' --------------	EXHIBITS ---------
	NIL.
	/ TRUE COPY /
	P.S. TO JUDGE

K.RAMAKRISHNAN, J.

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O.P.(C). No.2946 of 2015

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=======================

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Dated this the 11^th day of August, 2016

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JUDGMENT

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This is an application filed by the petitioner challenging Ext.P7 order passed by the court below in E.P. 149 of 2014 in O.S. 173 of 2010 pending before Sub Court, Mavelikkara under Article 227 of the Constitution of India.

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It is alleged in the petition that an ex parte decree was passed in O.S.175 of 2010 as per Ext.P1 decree and thereafter, Ext.P2 execution petition was filed by the decree holder to enforce the decree. On getting notice about the ex parte, he filed against Exts.P3 and P4 applications to set aside the ex parte decree with a delay condonation application and respondent filed Exts.P5 and P6 objections to the same. Inspite of that, court below had passed Ext.P7 order attaching the amount in Canara Bank, Wellington Island Branch, Kochi. This order is being challenged by the petitioner.

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Respondents entered appearance.

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Heard both sides.

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O.P.(C). No.2946 of 2015 -2-

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This Court has called for a report regarding the present stage of the applications to set aside the ex parte decree filed by the petitioner and report has been received which reads as follows:-

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“Referring to the above, I am directed to report whether any application to set aside exparte decree in O.S. 173/2010 on the file of this court is pending and the time required for the disposal of those applications. I may submit that the 1^st defendant in O.S.173/2010 had filed I.A.No.507/2015 on 06..06..2015 to set aside the ex parte decree and judgment and IA 506/2015 to condone the delay in filing the petition to set aside the ex parte decree and judgment. After taking the evidence and hearing the parties, both the petitions are disposed as dismissed on 28.07.2016.”

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It is seen from the report that after hearing both

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sides, the applications have been dismissed by the court below on 28.07.2016. The Counsel for the petitioner submitted that he had applied for the certified copy and he had not obtained the same. So his right to file an appeal may be reserved. He may also want some time for filing the appeal till then the order in Ext.P7 will have to be kept in abeyance.

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Considering the fact that the petitions to set aside the ex parte decree filed by the petitioner has been disposed

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O.P.(C). No.2946 of 2015 -3-

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of, the grievance that without disposing the petition, execution cannot be proceeded is without any merit now. However the grievance of the petitioner is that he must be given some breathing time to file appeal to get some interim order from the Appellate Court appears to be genuine.

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So under such circumstances, this court disposed of the petition as follows:-

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The petitioner's right to file appeal against impugned order dated 28.07.2016 in I.A. 507 of 2015 and 506 of 2015 in O.S.173 of 2010 of Sub Court, Mavelikara is not affected by disposing of this petition. However, the execution proceedings in E.P.149 of 2014 of Sub Court, Kochi is directed to be kept in abeyance for a period of three weeks, The order passed by this Court will not enable the bank to release amount of Rs.3,37,059 ordered to the petitioner and the Bank is directed to keep the amount and the balance amount if any in the account can be permitted to be withdrawn by the petitioner.

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With the above directions and observations the petition

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is disposed of.

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K.RAMAKRISHNAN, JUDGE

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SKV

M/S. Star Shipping Company v. M/S. Puthuve;L Associates

Case brief

What is this about?

What did the court decide?

M/S. Star Shipping Company v. M/S. Puthuve;L Associates

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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