IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 Ex.FA.No. 42 of 2005() ---------------------- AGAINST THE ORDER DATED 22/10/2005 IN EA 1361/05 IN EP 34/04 IN OS.982/1994 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT/CLAIM PETITIONER: ---------------------------------------------- SR.ELSA MARIA, SISTER SUPERIOR, JYOTHI NILAYAM ENGLISH MEDIUM HIGH SCHOOL, ST. ANDREWS, ST. XAVIERS COLLEGE P.O., THIRUVANANTHAPURAM. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT(S): COUNTER PETITIONERS/DECREE HOLDERS & JUDGMENT DEBTORS: ---------------------------------------------------------------- 1. SMT.THANKAMMA, KADUTHARISSU VEEDU, AVANAKUZHI, THANNIMOODU, BALARAMAPURAM, THIRUVANANTHAPURAM. 2. PUSHPAM, D/O.ANTONY, KADUTHARISSU VEEDU, AVANAKUZHI, THANNIMOODU, BALARAMPURAM, THIRUVANANTHAPURAM. 3. DINESH, S/O.ANTONY, KADUTHAISSU VEEDU, AVANAKUZHI THANNIMOODU, BALARAMAPURAM, THIRUVANANTHAURAM. 4. SUDHEESH, S/O.ANTONY, KADUTHARISSU VEEDU, AVANAKUZHI, THANNIMOODU, BALARAMPURAM, THIRUVANANTHAPURAM. 5. GIRISH, S/O.ANTONY, KADUTHAISSU VEEDU, AVANAKUZHI, THANNIMOODU, BALARAMAPURAM, THIRUVANANTHAPURAM. Kss ..2/- ...2..... EXFA.NO.42/2005 6. PRABHASH, S/O.ANTONY, KADUTHARISSU VEEDU, AVANAKUZHI, THANNIMOODU, BALARAMAPURAM, THIRUVANANTHAPURAM. 7. JYOTHI NILAYAM HIGH SCHOOL, ST. ANDREWS, KAZHAKKUTTAM, THIRUVANANTHAPURAM. 8. PRINCIPAL, JYOTHI NILAYAM HIGH SCHOOL, ST. ANDREWS, KAZHAKKUTTAM, THIRUVANANTHAPURAM. R1 ATO R6 BY ADVS. MR.P.S.RAMESH KUMAR, SMT.ANNAMMA ABRAHAM. THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.3413/2005 IN EXFA.NO.42/2005 DISMISSED 25/09/2009 SD/-M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = Ex.F.A. NO. 42 OF 2005 = = = = = = = = = = = = = = = Dated this the 25th day of September, 2009. J U D G M E N T This is an appeal preferred against the order of the execution court in E.A.1361/05 in E.P.34/04 in O.S.982/94 of the Subordinate Judge, Thiruvananthapuram. The plaintiff in the suit after a long fight obtained a decree against the defendants in the suit. The defendants in the suit are Jyothi Nilayam High School and Principal Jyothi Nilayam High School. Thereafter the decree holder moved an application for attachment of the bus which according to him belonged to the school and the bus was attached. The claimant herein is claiming to be the Sister Superior of Jyothi Nilayam English Medium High School and the contention is that the bus which is attached is purchased in the capacity of Sister Superior which belongs to the congregation represented by her. It is specifically averred in paragraph 3 that the bus No.KL-IB 6009 was purchased by the said congregation for the use of the school. So the contention raised by the claimant in the Ex.F.A. 42 OF 2005 -:2:- case is that the bus belong to the congregation but it is being used by the school and school has no title over the bus. On the contra the decree holders would contend that the bus belong to the school and therefore it is perfectly within their limits to proceed against the properties of the school for the realisation of the decree amount. The learned Subordinate Judge without giving any reason had summarily rejected the claim. A summary rejection of the claim is permissible under O.21 Rule 58 where, before the claim is preferred or objection is made, the property attached has already been sold or where the Court considers that the claim or objection was designedly or unnecessarily delayed. One cannot attribute the first proviso (a) because the bus has not been sold. It is also to be stated that there has not been any inordinate delay in preferring the claim before the Court. Really the claimants had deposited the amount as security to get attachment released and had preferred the claim petition. Therefore it was inappropriate on the part of the Court below to have thrown out the claim petition on the threshold itself. When the claim petition cannot be thrown out on the threshold, order 21 R.58(2) envisages the mode Ex.F.A. 42 OF 2005 -:3:- of enquiry to be continued in such cases. Therefore I set aside the order passed by the learned Subordinate Judge and direct that Court to restore the application to file, give notice to the respondents therein, permit them to file a counter and then dispose of the matter in accordance with law as contemplated under Order 21 Rule 58(2) of Code of Civil Procedure. Being a very old matter and as it relates to the service benefits of an individual the Court shall take special care to see the matter is disposed of as expeditiously as possible at any rate not later than four months from the date of first appearance of the parties. Since I am setting aside the order I am directing the parties to appear before the Court below on 27.10.2009. Needless to say that the sale of the bus or taking possession of the bus be kept in abeyance till the ownership is decided. M.N. KRISHNAN, JUDGE. ul/-