Allowed

Canara Bank v. Sreelatha S.B.

Kerala HC28 Nov 2016OP(C)/3008/2016

Case brief

AI extract

What is this about?

Petitioner bank challenged the lower court's dismissal of an application for advance hearing and notice in an attachment petition (E.P. 374/2016). The lower court refused the petition on the ground that the same property was already attached in a connected execution petition (E.P. 373/2016). The High Court held that separate attachment orders are necessary for different decrees regardless of prior

What did the court decide?

Petition allowed; lower court directed to pass appropriate orders in the attachment application as expeditiously as possible without delay.

Canara Bank Vs Sreelatha S.B. — 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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MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938

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OP(C).No. 3008 of 2016 (O)

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O.S.NO.1115/2011 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.

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PETITIONER/DECREE HOLDER:

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CANARA BANK, THIRUMALA BRANCH, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGER, SANIL KUMAR.S., NOW AGED 57, S/O.M.SIVASANKARAN NAIR, RESIDING AT SOPANAM, URA - 246, CHERUVALLY LANE, KANJIRAMPARA.P.O., THIRUVANANTHAPURAM, PIN CODE - 695 030.

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BY ADV. SRI.D.GANESH KUMAR

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RESPONDENT/JUDGMENT DEBTOR:

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SMT.SREELATHA S.B., AGED 44 YEARS, W/O.VIJAYAN, PROPRIETORIX OF M/S.NISSI HOLLOW BRICKS, T.C.18/722(5), KAITHARAKONAM PUTHENVEEDU, KUNNAPPUZHA, THIRUMALA, THIRUVANANTHAPURAM - 695 006.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 3008 of 2016 (O)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT. P1 : TRUE COPY OF THE DECREE DATED 24.7.2013,IN OS.NO.1117 OF 2011 PASSED BY PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.

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EXT. P2 : TRUE COPY OF THE JUDGMENT DATED 24.7.2013,IN OS.NO.1117 OF 2011 PASSED BY PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.

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EXT. P3 : TRUE COPY OF THE DECREE DATED 30.7.2013,IN OS.NO.1115 OF 2011 PASSED BY PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.

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EXT. P4 : TRUE COPY OF THE JUDGMENT DATED 30.7.2013,IN OS.NO.1117 OF 2011 PASSED BY PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.

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EXT. P5 : TRUE COPY OF THE EXECUTION PETITION NO.373 OF 2016 IN OS.NO.1117 OF 2011 NOW PENDING BEFORE THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.

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EXT. P6 : TRUE COPY OF THE EXECUTION PETITION NO.374 OF 2016 IN OS.NO.1115 OF 2011 NOW PENDING BEFORE THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.

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EXT. P7 : TRUE COPY OF SETTLEMENT DEED NO.805/1996 DATED 4.3.1996 IN FAVOUR OF THE JUDGMENT DEBTOR.

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EXT. P8 : TRUE COPY OF APPLICATION FOR ADVANCEMENT OF HEARING NUMBERED AS E.A.NO.373 OF 2016 IN OS.NO.1117/2011.

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EXT. P9 : TRUE COPY OF APPLICATION FOR ATTACHMENT NUMBERED AS E.A.NO.955 OF 2016 IN E.P.NO.373 OF 2016 IN OS.NO.1117 OF 2011, PREFERRED BEFORE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.

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EXT. P10 : TRUE COPY OF APPLICATION FOR ADVANCEMENT OF HEARING NUMBERED AS E.A.NO.951 OF 2016 IN EP.NO.374 OF 2016 IN OS.NO.1115/2011.

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EXT. P11 : TRUE COPY OF APPLICATION FOR ATTACHMENT NUMBERED AS E.A.NO.952 OF 2016 IN E.P.NO.374 OF 2016 IN OS.NO.1115 OF 2011, PREFERRED BEFORE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.

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EXT. P12 : TRUE COPY OF ORDER IN EA.NO.951/2016 IN E.P.NO.374/2016 IN OS.NO.1115 OF 2011.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

mbr/

K.RAMAKRISHNAN, J.

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O.P.(Civil) No.3008 of 2016

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Dated this the 28^th day of November, 2016

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JUDGMENT

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This petition has been filed by the petitioner/bank, dissatisfied with the order passed by the court below in advance hearing and also passing an order of notice in the attachment application filed in E.P.374/2016 in O.S.1115/2011 of Sub Court, Thiruvananthapuram under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner bank filed two suits against the respondents for the recovery amount due from her in two loan transactions and those two suits were decreed expate evidenced by Exts.P1 to P4. The petitioner filed E.P.373/2016 in O.S.1117/2011 before the Principal Sub Court, Thiruvananthapuram and also filed E.A.951/2016 for advance hearing and the petitioner also filed E.P.373/2016 in O.S.1117/2011 and also filed E.A.955/2016 for attachment of the property of the judgment debtor. They had also filed E.A.952/2016 in E.P.374/2016 in O.S.1115/2011 for attachment of the same property. But in one case, namely E.P.373/2016, the court below ordered attachment of the property, but the court below dismissed Ext.P10 application to advance hearing of E.A.951/2016 on the ground that there is no necessity, because there is already an attachment of the property and notice was ordered in E.A.952/2016 in

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O.P.(Civil) No.3008 of 2016

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E.P.374/2016 in O.S.1115/2011. Aggrieved by the dismissal and order of notice, the present petition has been filed.

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Heard Sri.D.Ganesh Kumar, counsel appearing for the petitioner and this court felt that the petition can be disposed of at the admission stage itself after hearing the counsel for the petitioner.

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The counsel for the petitioner submitted that, the court below is not consider the question for each decree when a property will have to be proceeded, attachment must follow. Merely because in one case, the attachment was effected that will not benefit the other execution petition, unless it is separately attached in that matter.

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It is an admitted fact that O.S.1117/2011 and O.S.1115/2011 were filed by the petitioner bank against the same respondent in respect of two loans taken by her from the bank when she committed default in payment of the amount. Those suits were decreed exparte as the respondent did not appear evidenced by Exts.P1 to P4 decree and judgment respectively. The petitioner bank filed E.P.373/2016 in O.S.1117/2011 and E.P.374/2016 in O.S.1115/2011 and also filed E.A.955/2016 in E.P.374/2016 and also filed E.A.952/2016 in E.P.374/2016 for attachment of the same property of the respondent. Since the E.P was posted to a longer date,

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O.P.(Civil) No.3008 of 2016

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namely 13.12.2016 they filed the above applications for advance hearing and passed orders in the attachment application. The court below allowed the application for advance hearing in E.P.373/2016 in O.S.1117/2011 and ordered attachment of the property, but the court below dismissed the application in E.A.951/2016 in E.P.374/2016 in O.S.1115/2011 on the ground that there is no urgency as attachment was already been effected in the connected case in another execution petition. This order has been challenged by the petitioner. The court below failed to note the fact that merely because a property was attached in another execution petition, is not a ground for denying the attachment of the same property in another execution petition as each decree holder has got a right to attach the property and the question as to whether the property will have to be sold and reliable distribution can be effected etc., can be considered only if there is a claim over the property. This aspect has not been considered by the court below. So this court feels that the petition can be disposed of by giving direction to the court below considered and pass appropriate orders in E.A.952/2016 in E.P.374/2016 in O.S.1115/2011 of Sub Court, Thiruvananthapuram as follows:

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If the petitioner files an application for review the order of

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O.P.(Civil) No.3008 of 2016

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issuing notice in E.A.952/2016 in E.P.374/2016 in O.S.1115/2011 along with an application for advance hearing, then court below is directed to pass appropriate orders in that application as expeditiously as possible without delay. If there is appearance for the respondent, then court below can pass appropriate orders in that application after hearing him before 13.12.2016 and if there is no appearance for the respondent also, if notice has not been sent, then also if a review application is filed, court below is directed to pass appropriate orders before 13.12.2016 and communicate that order to the respondent.

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With the above direction and observation the petition is disposed of.

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Registry is directed to communicate this judgment to the concerned court immediately by phone and followed by fax.

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Sd/- (K. Ramakrishnan, Judge)

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//True Copy//

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P.A. to Judge

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Canara Bank v. Sreelatha S.B.

Case brief

What is this about?

What did the court decide?

Canara Bank v. Sreelatha S.B.

Case brief

What is this about?

What did the court decide?

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