IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 WP(C).No. 23095 of 2010(O) -------------------------- AGAINST THE ORDER DATED 17/08/2009 IN EA 229/2009 IN EP 86/2006 IN LAR.19/2003 of SUB COURT, CHERTHALA .................... PETITIONER: --------------- THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER: ADV. SRI. B JAYASURYA RESPONDENTS: --------------- 1. VISWANATHAN NAIR, KANAKAMANGALATH, PALLIPPURAM, CHERTHALA. 2. BHARGAVI AMMA, W/O.VISWANATHAN NAIR, KANAKAMANGALATH, PALLIPPURAM, CHERTHALA-688541 ADV. SRI.J.OM PRAKASH FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23095 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : E A NO. 229/2009 EXHIBIT P2 : ORDER DTD 17.08.2009 IN E A 229/09 IN LAR 19/03 IN EP 86/06 EXHIBIT P3 : NOTICE DTD 15.06.2010 ISSUED BY THE LEARNED SUB JUDGE EXHIBIT P4 : JUDGMENT DTD 25.02.2010 IN W.P(C).NO.31577/2009 THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.23095 of 2010 --------------------------------------- Dated this 23rd day of November, 2010 JUDGMENT Judgment disposing of the writ petition on November 18, 2010 is recalled. Heard both sides. 2. This petition is filed by the Excise Commissioner challenging Ext.P3, notice directing him to appear in the court of learned Sub Judge, Cherthala and give explanation why suo moto proceeding shall not be initiated against him. That notice was issued pursuant to certain steps taken for attachment of the amount in the hands of petitioner and on his failure to deposit the amount as directed by the court. In this petition it is contended that as the order is passed under Rule 46 of Order XXI of the Code of Civil Procedure (for short, “the Code”) it is not sustainable. According to the learned Government Pleader proper course would have been to attach the amount in the hands of petitioner invoking Rule 52 of Order XXI of the Code. Learned counsel for respondents submit that substantial amount is due to the respondents/decree holders and that State-judgment debtor has not deposited the amount in spite of lapse of so much time. It is pointed out that attachment was made under Rule 52 of Order W.P(C).No.23095 of 2010 : 2 : XXI of the Code at a time when every attempt made to get the amount from State-judgment debtor failed. Learned counsel also invited my attention to Ext.R1 series produced along with counter. 3. Ext.P2, order which is under challenge in this case is passed on August 17, 2009 whereby the amount in the hands of petitioner was attached. It is not disputed that before Ext.P2, order was passed no notice was given to the petitioner. Under Rule 52 of Order XXI of the Code where property to be attached is in the custody of any court or public officer, attachment shall be made by a notice to such court or officer, requesting that such property, and any interest or dividend becoming payable thereon, be held subject to further orders of the court from which the notice is issued. Rule 316 of the Civil Rules of Practice states that if the property sought to be attached is in the custody of a public officer, the execution petition shall ask that the property be brought into court and realised, and the notice of attachment shall request that the money or property be brought into court, or that such officer shall state whether he has any and what objection to so doing. If any objection is raised by such officer the same shall be decided by the court after hearing. It is seen W.P(C).No.23095 of 2010 : 3 : that no such notice was given to the petitioner before attachment of property but, it is seen from Ext.R1 series that though subsequent to Ext.P2, notice was given to the petitioner on various occasions. Ext.R1(a) shows that the order passed (Ext.P2) is one under Rule 52 of Order XXI of the Code. Though in Ext.R1 (a) the expression (garnishee) is also used, I can only understand it as an inadvertent mistake. It is seen from Ext.P2 that order of attachment was served on petitioner on 19-09-2009 but, he did not respond. Then by letter dated 11-12-2009 addressed to the petitioner (referring to Ext.P2, order of attachment) and directing petitioner to deposit the amount attached in court on or before 08-01-2010 without fail. That letter was served on petitioner on 19-12-2009 as seen from Ext.R1(d). To that letter, there was no response from petitioner. It is thereon that Ext.P3, notice was issued to the petitioner directing him to appear in the court below on or before 31-07-2010 to show cause why suo moto proceedings shall not be initiated against him in non compliance of the previous orders. 4. As I stated, it is true that before Ext.P2, order was passed no notice was given to the petitioner but atleast after passing that order petitioner got opportunity to show why the W.P(C).No.23095 of 2010 : 4 : amount shall not be brought to the court as attached under Ext.P2. In the circumstance, I do not find reason to interfere with Ext.P2, order. 5. Now the question is whether pursuant to Ext.P3, letter petitioner has to appear before the executing court. It is seen from Ext.R1 series that in spite of several communications petitioner did not think it necessary to give a reply to the learned Sub Judge. Propriety required him to respond to the letter served on him rather than keep quite. I do not wish to add further in the matter. 6. Learned Government Pleader has submitted that given some time, State-judgment debtor will deposit the amount due to the respondents. I accept the submission made by learned Government Pleader and accordingly the State-judgment debtor is granted two months' time from this day to deposit the amount in the executing court for payment to the respondents. I also make it clear that if such deposit is made, petitioner need not appear in court in person as directed in Ext.P3 and need only submit his explanation through the Government advocate concerned. But, I make it clear that in case State-judgment debtor does not deposit the amount within the aforesaid time, petitioner shall appear W.P(C).No.23095 of 2010 : 5 : personally in the court below on 25-01-2011 and give explanation pursuant to Ext.P3, notice. It will also be open to the petitioner to state his objection if any to Ext.P2, order attaching the amount and why the amount shall not be brought to the court. Personal appearance of petitioner however is dispensed with for the time being as aforesaid. This petition is disposed of as above. (THOMAS P JOSEPH, JUDGE) Sbna/-