IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 WP(C).No. 27929 of 2009(O) -------------------------- AGAINST THE ORDER DATED 22/05/2009 IN EP10/2008 IN OS.41/2007 of PRINCIPAL SUB COURT,ALAPPUZHA -------------------- PETITIONERS: --------------- 1. RAJAN, S/O. SUKUMARAN, PRESIDENT, S.N.D.P. BRANCH NO.3715, AMBALAPPUZHA, (SREE BHAVANAM, KOMANA, AMBALAPPUZHA). 2. RADHAKRISHNAN, SECRETARY, S.N.D.P.BRANCH NO.3715, AMBALAPPUZHA, (THAIPARAMBIL VEEDU, KOMANA, AMBALAPPUZHA). BY ADV. MR.R.AZAD BABU RESPONDENT: --------------- VIDYADHARAN P., CHERU BHAVANAM, BHAGAVATHIPPADY, PATHIYOOR P.O., KEERIKKADU, ALAPPUZHA. ADV. MS.C.G.BINDU MS.C.G.AJITHA MS.D.SARITHA MS.M.K.RAJITHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27929 of 2009(O) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: E.P.NO.10/2008 DTD. 10.1.2008 FILED BY THE RESPONDENT. EXT.P2: OBJECTIONS FILED BY THE JDs IN O.S.NO.41/07 DTD. 3.3.2008. EXT.P3: TERMS OF SETTLEMENT DTD. 14.7.2007. EXT.P4: ORDER DTD. 24.2.2009 IN E.P.NO.10/2008 IN O.S.NO.41/2007 OF THE LEARNED SUB JUDGE, ALAPPUZHA. EXT.P5: ORDER IN W.P.(C).NO.17084/2009 DTD. 22.6.2009 OF THIS HON.COURT. EXT.P6: ORDER IN E.P.NO.10/2008 IN O.S.NO.41/2007 DTD.22.5.2009 OF THE LEARNED SUB JUDGE, ALAPPUZHA. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.27929 of 2009 - O --------------------------------- Dated this the 8th day of December, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To call for the records leading to Ext.P4 and P6 orders and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction.” 2. Petitioners are the judgment debtors 2 and 3 in E.P.No.10/2008 in O.S.No.41 of 2007 on the file of the Sub Court, Alappuzha. Decree executed is one passed in an award by the Lok Adalat in the settlement arrived at by the parties. Resisting the execution of the decree these judgment debtors along with first judgment debtor filed Ext.P2 objections. Among other contentions in Ext.P2 objections the judgment debtors had contended that the present petitioners (2nd and 3rd judgment debtors) had been impleaded only in their capacity as office bearers of the first judgment debtor and so much so, they have no personal liability to pay off the decree debt. Alternatively, they also sought for discharging the decree debts by way of W.P.(C).No.27929 of 2009 - O 2 instalments. The court below after considering the terms of the settlement covered by the award, passed Ext.P4 order directing the judgment debtors to deposit one half of the decree amount. At that stage these petitioners had challenged Ext.P4 order by way of writ petition before this Court and that petition was disposed by Ext.P5 judgment reserving their right to impeach any final order directing issue of warrant against them on the basis of Ext.P4 order. Pursuant to P4 order, later, the court below passed Ext.P6 order directing issue of warrant against the judgment debtors since they failed to comply the direction to deposit of one half of the decree debt. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioners and also learned counsel for the respondent/decree holder. 4. The only challenge canvassed by the petitioners at the time of hearing is that the objection raised by the judgment debtors 2 and 3 that they have no personal liability to discharge W.P.(C).No.27929 of 2009 - O 3 the decree debt as they had been proceeded only as office bearers of the first judgment debtor, which is a branch of an organization, has not been considered by the court below before passing Exts.P4 and P6 orders directing issue of warrant against them for realization of the decree debt. I do not find any merit in the challenge so canvassed. If at all the petitioners had any such challenge it should have been canvassed before the decree/award was passed in the suit. Knowing fully what is their status and liability under the transaction, in the Lok Adalat they had entered into an agreement with the plaintiff/decree holder and in terms of the settlement an award was passed. Ext.P3 is the terms of the settlement which disclose that the defendants have agreed to pay to the plaintiffs the amount due in instalments. The question whether the judgment debtors are personally liable or not for the liability cannot be canvassed at the stage of execution. Even in successive stages of the suit different pleas cannot be raised by a party as such pleas are barred by constructive res judicata. In P.K.Vijayan v. Kamalakshi Amma and Others AIR 1994 Sc 2145) the apex court has held “it would be fair and just that the W.P.(C).No.27929 of 2009 - O 4 parties to raise all available relevant pleas in the suits or the proceedings when the action is initiated and the omission thereof does constitute constructive res judicata to prevent raising of the same at a later point of time thereby it must be deemed that they are waived.” So much so, the objection canvassed in execution that they have been proceeded only in their official capacity as office bearers of the first judgment debtor, association, deserve to be noticed only for its rejection. Plea of no means canvassed by the petitioners was also found meritless on the basis of the materials tendered in the proceedings by the learned Sub Judge. I do not find any impropriety or illegality in Ext.P6 order directing issue of warrant against the petitioners for realizing decree debt. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-