IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 16574 of 2010(O) -------------------- AGAINST THE ORDER IN E.P.614/2003 IN OS.930/1987 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- SITA VARMA, VRINDAVAN HOUSE, PULLEPPADY ROAD, COCHIN-16, NOW RESIDING AT SEETHA SADANAM, AMBALAPUZHA, ALLEPPEY DISTRICT. BY ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUMTHALLY RESPONDENT(S): --------------- 1. V.K.RAMACHANDRAN NAIR, VARAKAPPALLIL HOUSE, THIRUNAKKARA, KOTTAYAM-1. 2. RASHMY'S, A PARTNERSHIP FIRM, BRAHMAPURAM P.O., AMBALAMEDU, ERNAKULAM DISTRICT. 3. G.VIDYANATHA, AGED ABOUT 60, MOOKAMBI, PUTHENMADAM NORTH PARUR, PARTNER, RESHMY'S, BRAHMAPURAM P.O., AMBALAMEDU, NOW RESIDING AT VI/1944, PADAGA HOUSE, LARAN ROAD, MATTANCHERRY, COCHIN-2. ADV. SRI.S.SREEKUMAR FOR R-1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.16574/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF EA 1113/2009 DATED 10.11.2009 IN EP 614/2003 IN OS 930/1987 ON THE FILE OF SUB COURT, ERNAKULAM EXT.P2 TRUE COPY OF COUNTER AFFIDAVIT DATED 28.11.2009 IN EA NO.1113/2009 FILED BY SITA VARMA EXT.P3 TRUE COPY OF ORDER DATED 12.3.2010 IN IA NO.1113/2009 PASSED BY THE SUB COURT, ERNAKULAM //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.16574 of 2010 -------------------------------------- Dated this the 21st day of October, 2010. JUDGMENT This petition is filed by judgment debtor No.2 in E.P.No.614 of 2003 in O.S.No.930 of 1987 of the court of learned Principal Sub Judge, Ernakulam. Respondent No.1 has obtained a decree against petitioner and others for recovery of Rs.22,75,027.20 with interest and cost. In the meantime, there was an agreement for sale of property belonging to the petitioner and her three children with one Radhakrishnan which resulted in a compromise decree in O.S.No.490 of 1996 of the court of learned Sub Judge, Ernakulam. Pursuant to that, sale deed was executed through court in favour of the said Radhakrishnan. Radhakrishnan deposited in court Rs.7,48,773/- being the balance sale consideration payable as per the decree in O.S.No.490 of 1996. Petitioner and her children filed I.A.No.630 of 2001 to set aside the compromise decree in O.S.No.490 of 1996 on the ground of fraud and that application ended in dismissal. That order was challenged in this Court in C.R.P.No.353 of 2006. That revision was dismissed for default on 11.07.2007. Learned counsel states that C.R.P.No.353 of 2006 has now been restored to file and is pending consideration. In the meantime, respondent No.1 filed E.A.No.1113 of 2009 to attach the sum of Rs.7,48,773/- deposited by Radhakrishnan in court pursuant to the decree in O.S.No.490 of 1996. That application was allowed rejecting contention of petitioner that her claim over that amount is only for 1/4th and the WP(C) No.16574/2010 2 remaining 3/4th share belonged to her three children which could not be attached. The executing court rejected that objection and allowed I.A.No.1113 of 2009 which is under challenge in this petition under Article 227 of the Constitution. Learned counsel for petitioner asserted that the amount due to petitioner from the amount in deposit in the court is only its 1/4th and hence at any rate attachment of the entire amount is not legal or proper. Learned counsel for respondent No.1 contends that what is now done by the executing court in E.P.No.614 of 2003 is only to attach the amount in deposit in O.S.No.490 of 1996 and that when the amount is brought to the court where E.P.No.614 of 2003 is being executed it is open to such other persons who have any interest in the said amount to make a claim over that amount and the executing court will be bound to decide that claim. It is also the contention of learned counsel that O.S.No.490 of 1996 is filed by Radhakrishnan in collusion with petitioner and others to defeat respondent No.1 to whom more than Rs.22,75,000/- is due from the petitioner and her only property is the one involved in O.S.No.490 of 1996. 2. It is seen from the impugned order that the learned Sub Judge has made an observation in paragraph No.5 of the order that the contentions raised by petitioner are not sustainable. That observation however cannot bind the children of petitioner who are said to have a claim over the amount in deposit and attached as per order on E.A.No.1113 of 2009. I make it clear that it will be open to the children of petitioner to make a claim over the amount attached in WP(C) No.16574/2010 3 case they have any such right over the said amount. If any such claim is preferred, the executing court shall proceed with such claim as provided under law. The executing court is also directed to give notice to Radhakrishnan, decree holder in O.S.No.490 of 1996 before deciding upon disbursement of the amount. Writ Petition is disposed of as above. THOMAS P.JOSEPH, Judge. cks