IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 7565 of 2010(O) ------------------------- AGAINST THE ORDER DATED 09/02/2010 IN EA 82/09IN EP 116/05 IN AROP.246/2004 of III ADDL. DISTRICT COURT, ERNAKULAM .................... PETITIONER: --------------- CO-OOPERATIVE ACADEMY OF PROFESSIONAL EDUCATION, COBANK TOWERS, VIKAS BHAVAN P.O., THIRUVNANTHAPURAM 69503, REPRESENTED BY ITS DIRECTOR. BY ADV. SRI.THOMAS ABRAHAM,SC,CO.OP ACADEMY-PRO RESPONDENTS: --------------- 1. UTTAL PRADESH RAJAKIYA NIRMAN NIGAM LTD, REPRESENTED BPY SRI.A.K.GUPTA, GENERAL MANAGER, HAVING IS REGISTERED OFFICE AT WISHWOSHARIA BHAVAN, VIBHUDHI KHAND GOMATI NAGAR, LUCKNOW-226010. 2. THE MANAGER, ERNAKULAM DISTRICT CO-OPERATIVE BANK, MEDICAL COLLEGE BRANCH, KALAMASSERY. ADV. SRI.M.PAUL VARGHESE FOR R2 SRI.S.CHANDRASENAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 - AFFIDAVIT DTD. 06.02.2010 FILED BY THE PETITIONER EXHIBIT P2 - COPY APPLICATION DTD. 03-03-2010 EXHIBIT P3 - URGENT PETITION DTD. 06-03-2010 FOR GETTING THE CERTIFIED COPY EXHIBIT P4 - ORDER DTD. 18-02-2010 ISSUED TO THE 2nd RESPONDENT. RESPONDENT'S EXHIBITS: NIL THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.7565 of 2010 --------------------------------------- Dated this 18th day of May, 2010 JUDGMENT The judgment debtor in E.A.No.82 of 2009 in E.P.No.116 of 2005 in ARB.O.P.No.246 of 2004 on the file of learned Additional District Judge-III, Ernakulam is the writ petitioner. He seeks to quash Ext.P4, order of attachment dated 09-02-2010 and a direction to the learned Additional District Judge not to implement the said attachment order during the pendancy of the special leave petition pending before the Supreme Court. Respondent No.1 has obtained an award pursuant to the arbitration and sought to enforce that award in the court of learned Additional District Judge. There was a prayer for attachment of certain amount belonging to the petitioner and in deposit with respondent No.2. It would appear that when the prayer for attachment was made before the learned Additional District Judge, petitioner pointed out that a special leave petition challenging the award itself is pending consideration of the Supreme Court. Learned Additional District Judge wanted petitioner to furnish details. According to the learned counsel, petitioner did furnish the details but, without taking that into account and as if no such details was furnished W.P.C.No.7565 of 2010 : 2 : learned Additional District Judge proceeded to pass Ext.P4, oder. Hence the writ petition. Learned counsel for petitioner has brought to my attention the averments in paragraph 7 of the writ petition where details of the affidavit said to be filed by the petitioner are given. Learned counsel for respondent No.1 would submit that the proceeding of learned Additional District Judge would show that on the relevant day, there was no representation for the petitioner and no objection was also filed as directed. According to learned counsel, no counter was also filed by the petitioner on E.A.No.82 of 2009. According to the learned counsel, details were furnished only on 08-02-2010 after the impugned order was passed. 2. I am not going to the controversy whether the affidavit as directed by the learned Additional District judge was filed before the due date. It is not disputed that there was no stay of execution obtained by the petitioner from the Supreme Court. As such, there was nothing illegal in the learned Additional District Judge proceeding with the execution of the award and passing the impugned, Ext.P4 order. 3. Learned counsel for petitioner submitted that petitioner is a charitable society and that if the funds of the petitioner are detained by virtue of the order of attachment the functioning of the W.P.C.No.7565 of 2010 : 3 : society itself will go to stand still. 4. Having regard to the circumstances involved I consider that petitioner is given an opportunity to request the learned Additional District Judge to lift the attachment as per Ext.P4, order on furnishing appropriate security which is presumable in the light of the decision of the division bench of this court in Sidharthan Vs. Praveen Chandran (2008 (1) KLT 136). Resultantly this writ petition is disposed of in the following lines: (i)It is directed that the executing court shall not direct the Garnishee (respondent No.2) to deposit the attached amount in court for a period of one month from this day. (ii)In the meantime it will be open to the petitioner to move the executing court for lifting the attachment on furnishing sufficient security to the satisfaction of that court for the amount due under the decree either in the form of bank guarantee or in the any other form. (iii)The execution petition will be kept in abeyance during the said period of one month. It is made clear that if petitioner does not furnish security ot W.P.C.No.7565 of 2010 : 4 : the satisfaction of the executing court within one month as above stated, it will be open to the executing court to proceed with the execution pursuant to Ext.P4 order unless, there is any order of restraint issued by the apex court in the meantime. (THOMAS P JOSEPH, JUDGE) Sbna/-