IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 OP.No. 35085 of 2001(B) ----------------------- PETITIONER: ------------ 1. LEELAMMA, AMBALAKKATTU CHIRA, PATTANAKKAD P.O., CHERTHALA. 2. SUDHAMANI, SARADA NILAYAM, ANDHAKARANAZHY, PATTANAKKAD P.O., CHERTHALA. BY ADV. SRI.P.V.JAYACHANDRAN RESPONDENTS: ------------- 1. THE ASST. EXCISE COMMISSIONER, OFFICE OF THE ASST. EXCISE COMMISSIONER, ALAPPUZHA. 2. DEPUTY TAHSILDAR (RR), TALUK OFFICE, CHERTHALA. BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ON CMP 57285 OF 2001 IN OP 35085 OF 2001 DISMISSED 2.1.2008 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE NOTICE NO. B3 14/82/DBK ISSUED BY THE 2ND RESPONDENT DATED NIL. EXT.P2 TRUE COPY OF THE JUDGMENT IN OP 5451 OF 2001 DATED 14.3.2001 EXT.P3 TRUE COPY OF THE OBJECTION DATED 28.3.2001 FILED BY THE PETITIONERS. EXT.P4 TRUE COPY OF THE SALE NOTICE DATED 31.10.2001 ISSUED B Y THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 35085 OF 2001 -------------------------------------------- Dated this the 2nd day of January, 2008 JUDGMENT Petitioners are challenging recovery proceedings for recovery of arrears of abkari dues due from their father. The challenge on the ground of limitation is not tenable because the defaulter during his life time contested the matter in civil court which led to delay in recovery. Since recovery was initiated in time and the challenge against the same by the defaulter himself was not successful, petitioners cannot again agitate the same issue. The next question is only with regard to petitioners' liability to clear the arrears due from their father. Recovery cannot be initiated personally against petitioners, but it can be made by attachment and sale of properties of defaulter devolved upon the petitioners. In fact Ext.P2 judgment is to this effect. If the petitioners claim that the source of property is not from the defaulter, then petitioners can produce title deeds of the property before the Tahsildar who will examine the same and exclude the same if the properties are not transferred by the defaulter or not devolved upon the petitioners 2 from the defaulter. However, if the property originally belonged to the defaulter, such property can be attached and sold for recovery of arrears of abkari dues. In the alternative, petitioners are granted instalment facility to clear the arrears at the rate of Rs. 25,000/- per month, first of which will be paid on or before 31.1.2008 and the balance on or before last day of every succeeding month until arrears are cleared. Petitioners will within two weeks from today will give a letter of confirmation of availing instalment facility granted above, failing which recovery can be continued after two weeks. Similarly if default is committed in payment of any instalment, the instalment facility granted will stand automatically vacated and respondents will be free to proceed for recovery of entire amount due. Revenue recovery proceedings will be kept in abeyance for payments as above, and if petitioners make payment voluntarily then no collection charges will be recovered from the petitioners. O.P. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge 3