IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 WP(C).No. 13987 of 2009(O) --------------------------------------- OS.NO.415/1990 OF ADDL.SUB COURT, NORTH PARAVUR .................... PETITIONER/ CLAIM PETITIONER: ------------------------------------------------- V.P.BAHANAN, S/O.PAILY, P.W.D.CONTRACTOR, VATTAKATTU HOUSE, ARRAKKAPADY VILLAGE, EAST VENGOLA, PERUMBAVOOR. BY ADV.MR.M.C.JOHN. RESPONDENTS: ------------------------ 1. ALEX, S/O.POULOSE, PATTALATTU HOUSE, ARAKKAPADY KARA & VILLAGE, PERUMBAVOOR (DECREE HOLDER). 2. PAUL ISSAC, S/O.ISSAC, KUZHIKATTUKUNNEL, VENGOLA, PERUMBAVOOR (JD). R1 BY ADV. MR.SHEJI P.ABRAHAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.13987 of 2009 - O --------------------------------- Dated this the 16th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To call for the records relating to Exts.P1 and P3. ii) To issue a writ of certiorari or other appropriate writ or order or direction setting aside Ext.P3 order dated 25.2.2009 in E.A.No.1074/2004 in E.P.No.531/2001 in O.S.No.415/1990 on the file of the Additional Sub Court, North Paravur.” 2. The facts involved in the case may be summed up thus: The 1st respondent in the petition obtained a decree in a suit for money namely, O.S.No.415/1990 on the file of the Sub Court, North Paravur against the 2nd respondent. In execution of that decree, the 1st respondent/decree holder moved for attaching the amount in deposit in O.P(Arb).No.89/1987 in the Sub Court, Ernakulam. The present petitioner, who claims to have an irrevocable power of attorney, executed by the 2nd respondent in his favour, setting up an independent right over the amount which was attached and brought before the execution W.P.(C).No.13987 of 2009 - O 2 court, moved an application under Order XXI Rule 58 CPC. That application, after enquiry as contemplated by the rules, was dismissed. Against the dismissal of that petitioner, the petitioner/claimant preferred an appeal before this Court. Admittedly, that appeal was also unsuccessful. Against the decision of the learned Single Judge in that appeal, the petitioner/claimant preferred an appeal as A.F.A.No.11/88 before a Division Bench of this Court. The Division Bench, after taking note that the second appeal against the decision passed by the learned Single Judge was not maintainable, considered the appeal presented on its merits and concluded that the claimant has no independent right over the amount attached belonging to the 1st respondent and the decision entered by the learned Single Judge and the court below, the execution court, deserve only to be approved. In short, that appeal was also dismissed. The claimant/petitioner in the O.P., moved an application before the execution court to permit him to represent the 2nd respondent which was declined. Against that order, he preferred a revision, C.R.P.No.63/2004 before this Court. Taking note that representing the 2nd respondent as his power of attorney holder is W.P.(C).No.13987 of 2009 - O 3 different from setting up an independent right over the attached amount and the dismissal of the right so claimed will not debar the petitioner to represent the 2nd respondent, revision was allowed, reversing the order of the execution court. In the above revision some observations were made that in case the petitioner, on the basis of the irrevocable power of attorney has a legal claim over the amount, he is free to agitate that matter. Pursuant to the observation so made in C.R.P.No.63/2004, the petitioner again moved a claim petition before the execution court under Order XXI Rule 58 CPC , copy of that application is marked as Ext.P1. The decree holder, 1st respondent resisted that application filing written objections. While that Ext.P1 application was pending consideration before the execution court, the petitioner/claimant again approached this Court seeking a direction for disposal of that petition on merits and till then keeping in abeyance the release of the attached amount before the court. Without notice to the 1st respondent/decree holder, it appears, that writ petition bearing No.2981/2009 was disposed on the admission stage with a direction to the execution court to dispose of Ext.P1 application within three weeks from the date of W.P.(C).No.13987 of 2009 - O 4 production of copy of that judgment before the execution court. On production of a copy of the judgment before the execution court, in compliance with the orders given under the judgment referred to above, the execution court considered Ext.P1 application on its merits and passed Ext.P3 order declining the request of the petitioner/claimant for lifting the attachment over the attached amount brought from O.P(Arb).No.89/1987 on the file of the Sub Court, Ernakulam to that court. It is under the above circumstance, mainly contending that Ext.P1 application has not been disposed on merits, this writ petition has been filed by the petitioner/claimant invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Since the learned Sub Judge while passing Ext.P3 order declining the request of the petitioner/claimant to lift the attachment has not disposed of Ext.P1 application on its merits, it may not be proper for this Court to express any definite opinion on the controversy arising for adjudication which is yet to be gone into by the execution court. All the same, it has to be W.P.(C).No.13987 of 2009 - O 5 pointed out that the execution court has not taken note of the previous application moved by the claimant/petitioner under Order XXI Rule 58 CPC and the conclusiveness and finality of the orders passed thereunder as confirmed by this Court. Learned counsel appearing for the 1st respondent/decree holder submitted before me that the relevant documents with respect to the earlier petition moved by the plaintiff had been produced before the execution court. Ext.P3 order does not show that any reference has been made to those documents at the time of hearing. No document is seen exhibited for the purpose of disposing Ext.P1 application. If there had been a conclusive decision on the previous application moved by the claimants under Order XXI Rule 58 CPC, needless to point out the execution court cannot reopen the question again, whatever be the observations made by this court in orders/judgment rendered earlier. Observations so made have to be understood that if at all the claimant has any right to move such application then that question has to be gone into by the execution court. If that question has already been decided and decision there of has become conclusive, final and binding on the parties in the proceedings no fresh application to W.P.(C).No.13987 of 2009 - O 6 agitate the disputes concluded by the decision can be permitted. I direct the court below to dispose of Ext.P1 application examining the merit of the claim mooted by the petitioner with reference to a decisions rendered earlier on his previous application. The decree holder shall produce the relevant records with respect to the previous claim petition moved by the claimant/petitioner in the O.P. before the execution court, within two weeks. Parties are directed to appear before the execution court on 6.7.2009 and the execution court shall dispose of Ext.P1 application in the light of the observations made above, preferably on the same day and if not, within a period of fifteen days from the date of appearance of the parties. Till Ext.P1 application is disposed of, the amount over which claim is raised by the petitioner/claimant shall not be released. The writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-