Writ petition challenging attachment of petitioners' properties for recovery of fine due from their son. Court made interim order absolute directing respondents not to proceed against parents' properties.
Prayers to declare properties not liable for son's liability and restrain respondents from proceeding against parent's properties allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 22ND DAY OF JUNE 2016/1ST ASHADHA, 1938
WP(C).No. 18256 of 2011 (F)
PETITIONER(S):
1. VASU K.K., S/O.KESAVAN, AGED 70 YEARS, SANTHANILAYAM, VALLIKODE KARA, VALLICODE VILLAGE, KOZHENCHERY, PATHANAMTHITTA.
2. SANTHAMMA, W/O.VASU, AGED 62 YEARS, SANTHANILAYAM, VALLIKODE KARA, VALLICODE VILLAGE, KOZHENCHERY, PATHANAMTHITTA.
BY ADV. SRI.P.I.GEORGEKUTTY
RESPONDENT(S):
1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695004.
2. TAHSILDAR (RR), PATHANAMTHITTA-689645.
BY GOVERNMENT PLEADER SRI.P.V.ELIAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
WP(C).No. 18256 of 2011 (F)
APPENDIX
PETITIONER(S)' EXHIBITS
---------------------------------------`
NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
ALEXANDER THOMAS, J.
W.P.(C).No. 18256 of 2011
Dated this the 22nd day of June, 2016
JUDGMENT
The impugned Exts.P-3 and P-4 revenue recovery notices are said to have been issued in furtherance of the conviction and sentence imposed on the petitioners' son (one Sri.Sunil Kumar) for the offence punishable under Section 138 of the Negotiable Instruments Act. It is a case of the petitioners that their son has no property to be proceeded against and that the second respondent Tahasildar (Revenue Recovery), Pathanamthitta has attached the properties of the petitioners on the wrong assumption that those properties belong to their son Sri.Sunil Kumar. This is the gist of the grievance projected in this writ petition.
W.P.(C).No. 18256 of 2011 2
Section 138 of the Negotiable Instruments Act and he was found guilty of the offence convicted in the said case and he was released on bail on the execution of the bond by the petitioners. It is pointed out that a distress warrant was issued to Sri.Sunil Kumar, that now the second respondent has issued demand notice as per impugned Exts.P-3 and P-4 in Form No.10 under Section 34 of Revenue Recovery Act. together with notice under Section 7 of the Revenue Recovery Act. Eventhough, the said notice is addressed to Sri.Sunil Kumar, it is pointed out that he is not having any property to be attached and that the movables in the said properties are absolutely belonging to the petitioners. This apprehension of the petitioners, that the second respondent proceeds against the properties of the petitioners on the wrong assumption that the same belongs to the said Sri.Sunil Kumar. It is urged by the petitioners that the second respondent Tahasildar, before issuing the impugned Exts. P-3 and P-4 revenue recovery proceedings has overlooked the fact that the accused Sri.Sunil Kumar is not the owner of any property inorder to be proceeded against and that though it appears from Ext.P-4 that the attachment was effected, the said properties absolutely belong to the petitioners and that Sri.Sunil Kumar has no right
W.P.(C).No. 18256 of 2011
3
over the properties and that the properties of the petitioners are not liable to be proceeded against for the liability of Sri.Sunil kumar etc, that both the petitioners are aged and ailing persons etc. It is in the light of these facts and circumstances, the petitioners have filed the instant writ petition (civil) with the
following prayers:-
This Court while admitting this writ petition (civil) on 11.7.2001
had passed the following order which reads as follows:-
“The contention in this writ petition is that the properties belonging to the petitioners cannot be proceeded against for recovery of the fine amount due from their son as per the sentence of the criminal court under Section 138 of the Negotiable Instruments Act. According to the petitioner, they have no objection in proceeding against their son, but their properties cannot be proceeded against. In the above circumstances, insofar as the petitioners' properties cannot be proceeded against for the liability of their son, there would be an interim order as prayed for. But the respondents shall proceed against the son insofar as the son has to either pay the fine or undergo imprisonment. Appropriate steps to enforce the sentence can be
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4
initiated by the 1st respondent.”
With these observations and directions, the writ petition (civil) stands finally disposed of.
Sd/ALEXANDER THOMAS JUDGE
//TRUE COPY//
PA TO JUDGE
avk
1 issue framed by the court
Whether properties belonging to parents can be proceeded against for recovery of fine imposed on their son convicted under Section 138 of the Negotiable Instruments Act.
3 provisions across 2 enactments
VASU K.K.
SANTHAMMA
STATE OF KERALA
TAHSILDAR (RR), PATHANAMTHITTA
ALEXANDER THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
