IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 OP(C).No. 773 of 2011(O) ----------------------------------- [OS.NO.515/2007 OF PRINCIPAL SUB COURT,KOLLAM] .................... PETITIONER: ------------------- SHAJAHAN, S/O.HYDROSS KUNJU, NOORJEHAN HOUSE, PUNUKKANOORCHERRY, ELAMPALLOOR VILLAGE, PERUMPUZHA, KOLLAM. BY ADVS. SRI.K.G.ANIL BABU, SRI.R.RAJESH(PULLIKADA). RESPONDENTS: ------------------------ 1. SHEEN IGNATIUS, SHEEJA BHAVAN, PERAYATHUCHERRY, PADAPPAKKARA, MULAVANA VILLAGE, KOLLAM-691 503, REP. BY POWER OF ATTORNEY HOLDER SHEENA IGNATIUS, SHEEJA BHAVAN, PADAPPAKKARA, KOLLAM-691 503. 2. JOSE SHALY, SHEEJA BHAVAN, PADAPPAKKARA, PERAYATHUCHERRY, MULAVANA VILLAGE, KOLLAM-691 503, REP. BY POWER OF ATTORNEY HOLDER SHEENA IGNATIUS, SHEEJA BHAVAN, PADAPPAKKARA, KOLLAM-691 503. 3. ABDUL AZEEZ, S/O.HYDROS KUNJU, NOORJEHAN HOUSE, PARANKIMAVUVILA PURAYIDAM, NEAR WATER TANK, PUNUKKANOOR CHERRY, ELAMPALLOOR VILLAGE, KERALAPURAM, KOLLAM-691 504. BY ADV. SRI.K.SUBASH CHANDRA BOSE. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.773/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1.A: COPY OF THE RENT DEED DTD. 25/06/2009. EXT.P.1.B: COPY OF THE RENT DEED DTD. 01/07/2010. EXT.P.2: COPY OF THE PAPER SIGNED BY THE PETITIONER TO THE AMIN. EXT.P.3: COPY OF THE REVISION PETITION AS E.A. NO. 102/11 BEFORE THE HONOURABLE PRINCIPAL SUB COURT, KOLLAM. EXT.P.4: COPY OF THE CLAIM PETITION AS E.A. NO. 103/11 BEFORE THE HONOURABLE PRINCIPAL SUB COURT, KOLLAM. EXT.P.5: COPY OF THE ORDER DTD. 09/02/2011 OF THE HONOURABLE PRINCIPAL SUB COURT, KOLLAM. RESPONDENTS' EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P JOSEPH, J. ----------------------------------- O.P.(C)No.773 of 2011 --------------------------------- Dated this the 23rd day of November, 2011 JUDGMENT This Original Petition is in challenge of Ext.P5, order dated 09.02.2011 issuing warrant of arrest to the petitioner. Petitioner herein is said to be a garnishee. There is a direction to the police to assist the Amin(obviously for taking custody of the movables allegedly attached and placed in the custody of petitioner). 2. Respondents 1 and 2 obtained a decree for recovery of money against the third respondent and filed E.P.No.506 of 2009 in O.S.No.515 of 2007 of the court of learned Sub Judge, Kollam. According to respondents 1 and 2, movables belonging to the third respondent were attached and given in the custody of petitioner on 18.08.2010 on the latter executing Ext.P2, bond undertaking to produce the movables in court as and when required. Later, a notice was issued to the petitioner to produce the articles but that was not complied. Thereon Ext.P5, order was issued. O.P.(C)No.773 of 2011 2 3. According to the petitioner, the Amin obtained a signed paper making him believe that if the signed paper is given, movables will not be attached. It is only later that he learnt that movables were placed under attachment. Petitioner thereon filed application to review the order and made a claim under Rule 58 Order 21 of Code of Civil Procedure(short “code”). While those applications were pending, learned Sub Judge issued Ext.P5 order. It is contended that Ext.P5, order cannot be sustained. 4. Learned counsel for respondents 1 and 2 submitted that movables belonged to the third respondent who is the brother of petitioner and that in Ext.P3, affidavit sworn by petitioner before the learned Principal Sub Judge, it is stated that he had executed the bond and entrusted the same to the Amin. According to the learned counsel, in view of Sub Rule 2 of Rule 43 A of order 21 of the Code, petitioner was bound to produce the attached movables before court as directed failing O.P.(C)No.773 of 2011 3 which, petitioner was liable to pay compensation. 5. Since the applications preferred by petitioner are pending consideration before learned Principal Sub Judge, I need not go into the acceptability or otherwise of the contentions raised by the parties before me. I am now concerned with the question whether petitioner should be arrested and produced pursuant to Ext.P5, order when the applications preferred by petitioner are pending consideration of learned Principal Sub Judge. I am inclined to think that warrant of arrest could remain in abeyance until the applications preferred by petitioner are disposed of by the learned Sub Judge. 6. So far as removal of movables ordered by the learned Sub Judge is concerned, I make it clear that it is open to the learned Sub Judge to decide whether the said order should stand in abeyance until the applications filed by petitioner are disposed of, if necessary by directing petitioner to furnish O.P.(C)No.773 of 2011 4 sufficient security for production of the movables. Resultantly, this Original Petition is disposed of as follows: 1. It is directed that the warrant of arrest issued to the petitioner by Ext.P5, order will stand in abeyance till the applications preferred by petitioner are disposed of by the learned Principal Sub Judge. 2. Removal of movables in question will stand in abeyance for a period of three weeks from this day, subject to the condition that petitioner shall not remove or dispose of the said movables. 3. Learned Sub judge shall, within three weeks from this day decide whether the direction to produce the movables in court should be kept in abeyance or not until the O.P.(C)No.773 of 2011 5 applications preferred by the petitioner are disposed of, if necessary on condition that petitioner furnished sufficient security for production of the movables in court after the applications are disposed of. sd/- THOMAS P JOSEPH, JUDGE /True copy/ P.A. to judge ln