IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 17073 of 2008(G) -------------------------- OS.311/1997 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER: ------------ A.C.THOMAS , S/O. CHACKO, RESIDING AT TOM BHAVAN, CHERTHALA KIZHAKKUM MURI, KOKKOTHAMANGALAM VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.P.S.KRISHNA PILLAI RESPONDENTS: ------------- 1. CHACKO JOSEPH @ JOSEACHAN,S/O.CHACKO CHATHAPARAMBIL HOUSE, UZHUVA MURI, PATTANAKKAD VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. GEORGE ALEXANDER,KUNNAPPALLINIKARTHILAYA PUTHENPURAYIL, THYKKATTUSSERI VILLAGE CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.17073 of 2008 ------------------------------- Dated this the 9th June, 2008. J U D G M E N T Defendant in O.S.No.311/1997, on the file of the Munsiff Court, Cherthala, is challenging Ext.P5 order passed in I.A.No.482/2008, on 24.3.2008, where under petition filed under Rule 1 of Order VIII A of Code of Civil Procedure, to initiate third party proceedings was rejected by the learned Munsiff. The suit was originally decreed ex-parte and the ex-parte decree was set aside, after condoning the delay of more than 2200 days. Petitioner had filed a written statement on 22.7.1998, wherein he did not raise any contention with regard to third party proceedings. After the ex-parte decree was set aside, he got the written statement amended incorporating the contention and thereafter filed this petition to initiate third party proceedings. 2. The argument of the learned counsel appearing for the petitioner is that though because of the pendency of insolvency proceedings and for other reasons, petitioner did not raise the W.P.(C) No.17073/2008 2 contention with regard to the third party proceedings in the original written statement, the written statement was allowed to be amended by paying cost, and in the light of the case in the written statement as amended, and on the basis of the contentions of the petitioner that the transaction with the respondent-plaintiff was at the instance of the third party who received the amount and utilised it for his purpose, learned Munsiff should have admitted third party proceedings. The learned counsel also argued that dismissal of the petition as barred by time as well as belated are not justifiable. 3. On hearing the learned counsel, I do not find any illegality or irregularity in Ext.P5 order. The suit was instituted in the year 1987. It was once decreed ex-parte and was set aside later on the application filed by the petitioner after a lapse of more than 9 years. The question is whether at this stage petitioner is to be permitted to initiate third party proceedings under Rule 1 of Order VIII A of Code of Civil Procedure. Even if the case of the petitioner is to be accepted and it is to be taken that transaction was at the instance of the third party or third party utilised the funds obtained under the transaction, petitioner can very well proceed against the third party, subsequent to the decree. There is no justification in allowing the third W.P.(C) No.17073/2008 3 party proceedings at this belated stage, so as to cause prejudice to the plaintiffs to claim the amount from the third party, if otherwise entitled to. In such circumstances, with liberty, this petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.