The High Court set aside arrest and attachment orders in a civil suit where the court found service of summons was defective. The original petition was disposed of pending compliance with procedural rules in the lower court.
Setting aside Ext.P9 and Ext.P10 orders; original petition disposed of.
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 SUNIL THOMAS
THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941
OP(C).No.505 of 2019
AGAINST THE ORDER DATED 24.11.2018 AND 28.11.2018 IN OS 200/2012 of ADDITIONAL SUB COURT,KOTTAYAM
PETITIONERS:
1 ALEX THAYIL @ ALEX AGED 61 YEARS S/O.CHACKO, RESIDING AT THAYIL HOUSE, THAYIL BANK BUILDINGS, MANJOOR P.O., VAIKOM, KOTTAYAM.
2 KOCHURANI ALEX, AGED 57 YEARS W/O.ALEX THAYIL, RESIDING AT THAYIL HOUSE, THAYIL BANK BUILDINGS, MANJOOR P.O., VAIKOM, KOTTAYAM.
BY ADVS. SRI.KOSHY GEORGE SRI.P.C.HARIDAS
RESPONDENTS:
1 CYRIAC THAYIL @ CYRIAC, AGED 74 YEARS, S/O.CHACKO, THAYIL HOUSE, ALANICKAL ESTATE ROAD, ARAKULAM P.O., ARAKULAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT - 685 584.
2 BEVIN THAYIL @ BEVIN, AGED 71 YEARS, S/O.CHACKO, THAYIL HOUSE, KOIKKARA AVENUE, ARAMANKUNNU, CHUNANGUMVELI, ERNAKULAM, ERUMTHALA P.O., ALUVA EAST VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT - 683 112.
3 JOSE THAYIL, AGED 69 YEARS, S/O.CHACKO, RESIDING AT THAYIL HOUSE, K.R.A. 70, NEAR ALAPAT NAGAR, KAKKANAD P.O., KAKKANAD VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT - 682 030.
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4 GEORGE THAYIL, S/O.CHACKO, AGED 65 YEARS, RESIDING AT THAYIL HOUSE, HOUSE NO.33/2149, VENNALA, PALARIVATTOM P.O., EDAPPALLY SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT - 682 025.
BY ADV.
SRI JOHN JOSEPH VETTIKKAD
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP(C).No.505 of 2019
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JUDGMENT
The first petitioner was examined as DW 1 in O.S.No.200/2012 pending before the Additional Sub Court, Kottayam. After his examination, he was ordered to be re-called. Holding that, inspite of service of summons on him, he consistently failed to appear before the Court, bailable warrant was issued to him by Ext.P9 order. Amin was directed to report compliance. Thereafter, on a report of the Amin that, arrestee was duly informed about the process, but did not appear on the appointed day, arrest warrant was repeated. Taking note of the conduct of the witness in protracting the proceedings an amount of Rs.5,000/- (Rupees Five Thousand only) was fixed as a cost tentatively. Subject to the final disposal of the suit, his property was ordered to be attached for enforcing payment. These orders are under challenge in the
above proceedings on a premise that, the Court
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below went wrong in interpreting the provisions of law.
2. Essentially, the attempt of the Court was to procure the presence of the first petitioner. It is true that, inspite of service of summons of the first petitioner, he did not appear. However, he has an explanation that he appeared before the Court and sought an adjournment. However the case was adjourned to a date which was few days prior to the marriage of his daughter. Thereafter, summons was tendered to him through the Advocate Clerk without compliance with the provisions under Order XVI Rule 10 of CPC. On the basis of a report by Advocate Clerk that, notice was attempted to be served on the petitioners, warrant was issued. According to the counsel, the order of attachment evidenced by Ext.P10 is in violation of Order XVI Rule 12. I find some substance in the contentions of the petitioners. Hence I am inclined to interfere in the impugned order. The first
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petitioner herein has assured to appear before the Court below and to participate in the trial on any day fixed by this Court.
3. Accordingly, I am inclined to dispose of
the original petition itself setting aside Ext.P9 and Ext.P10 orders directing the first petitioner herein to appear before the Court below on 17.07.2019 at 11.00 a.m. and to offer himself for examination. In case of default,. the Court below will be free to pass fresh orders in accordance with law.
The original petition (civil) is disposed of
as above.
Sd/-
SUNIL THOMAS JUDGE
VPK
OP(C).No.505 of 2019
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APPENDIX OF OP(C) 505/2019
PETITIONERS' EXHIBITS:
| EXHIBIT P1 | TRUE COPY OF O.S.NO.200/2012 ON THE FILE OF THE ADDITIONAL SUB COURT, KOTTAYAM. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE COUNTER CLAIM FILED BY THE PETITIONERS. |
| EXHIBIT P3 | TRUE COPY OF I.A.NO.1385/2018 IN O.S.NO.200/2012. |
| EXHIBIT P4 | TRUE COY OF I.A.NO.1675/2018 IN O.S.NO.200/2012. |
| EXHIBIT P5 | TRUE COPY OF OBJECTION TO EXT.P4. |
| EXHIBIT P6 | TRUE COPY OF THE MARRIAGE INVITATION CARD. |
| EXHIBIT P7 | TRUE COPY OF THE PETITION FILED BY THE RESPONDENTS FOR ISSUING SUMMONS THROUGH COURT. |
| EXHIBIT P8 | TRUE COY OF THE OBJECTION TO EXT.P7. |
| EXHIBIT P9 | TRUE COPY OF THE ORDER DATED 24/11/2018 IN O.S.200/12. |
| EXHIBIT P10 | TRUE COY OF THE ORDER DATED 28/11/2018 IN OS 200/12. |
| EXHIBIT P11 | TRUE COPY OF IA 1821/208 THE PETITION TO LIFT ATTACHMENT FILED BY THE PETITIONERS. |
| EXHIBIT P12 | TRUE COPY OF IA NO.1834/2018 PETITION TO RECALL WARRANT. |
| EXHIBIT P13 | TRUE COPY OF THE DISCHARGE SUMMARY OF THE 1ST PETITIONER. |
| EXHIBIT P14 | TRUE COPY OF THE ORDER DATED 05/12/2018 IN O.S.NO.200/12. |
// TRUE COPY //
PA TO JUDGE
VPK
3 issues framed by the court
Whether the impugned order issuing arrest and attachment warrants violated Order XVI Rules 10 and 12.
Whether the High Court should exercise judicial discretion to set aside the procedural orders.
Whether the court should enforce the original petition's procedural requirements.
2 provisions across 1 enactments
ALEX THAYIL
KOCHURANI ALEX
CYRIAC THAYIL
BEVIN THAYIL
JOSE THAYIL
GEORGE THAYIL
SUNIL THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
