IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 WP(C).No. 25309 of 2009(O) -------------------------- AGAINST THE ORDER IN IA 5080/2008 IN OS.670/2008 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER: --------------- S.DASAN NAIR, AGE 56/08, S/O.P.SREEDHARAN NAIR, R/a 45/2160 L.KARSHAKA ROAD, VADUTHALA, ERNAKULAM. BY ADV. MR.T.B.SHAJIMON MS.GOVINDU P.RENUKADEVI RESPONDENT/ PLAINTIFF: ------------------------- M/S.HAZEL MERCANTILE LTD., 181 ASHOKA CENTRE,2ND FLOOR,G.T.HOSPITAL COMPEX,L.T.ROAD, MUMBAI-400001,BRANCH OFFICE 2E/F CHURCHES SQUARE BLOSSOM KOCHIN ROAD, KADAVANTHARA P.O.,KOCHIN-20. REP.V.K.MOHANAN,AGED 57 YEARS, S/O.LATE M.D.NARAYANAN NAMBOOTHIRI, AMBIKA SADANAM, ETTUMANOOR, EAST KOTTAYAM. ADV. MR.V.M.KURIAN FOR R1 MR.K.T.THOMAS FOR R1 MR.C.N.SREEKUMAR FOR R1 MR.MATHEW B. KURIAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.25309 of 2009 - O --------------------------------- Dated this the 13th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the records in I.A.No.5080/2008 in O.S.No.670/2008 to set aside the judgment in I.A.No. 5080/2008 in O.S.No.670/2008 on the file of Honourable Sub Court, Ernakulam, to secure the ends of justice. ii) To stay all further proceedings in O.S.No.670/2008 on the file of Honourable Sub Court, Ernakulam till the final disposal of this writ petition.” 2. Petitioner is the defendant in O.S.No.670 of 2008 on the file of the Sub Court, Ernakulam. Ext.P6 order passed by the learned Sub Judge making absolute the conditional order of interim attachment ordered over the property of the petitioner is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Respondent/Plaintiff instituted a suit for damages alleging that the petitioner/defendant who was employed as a W.P.(C).No.25309 of 2009 - O 2 marketing manager in the company by his deeds and omissions caused substantial loss and he is liable for such sum. Suit claim was for Rs.44,53,20/-. An application was also moved for attachment of an immovable property belonging to the petitioner/defendant. Over the interim attachment passed, it is submitted, proceedings were initiated before this Court giving rise to Ext.P4 judgment and, later, Ext.P5 order reviewing the earlier judgment. Pursuant to Ext.P4 judgment and Ext.P5 order, after hearing both sides, the learned Sub Judge has passed Ext.P6 order. Serious procedural irregularity and non stating of any reason for making absolute the interim order of attachment are projected by the learned counsel for the petitioner to impeach the correctness of that order. It is also pointed out the application for attachment is filed under Order XXXVIII Rule 1 of the CPC. Whatever that be, quoting a wrong provision in the application moved for interim order of attachment cannot be considered decisive or material. The petitioner has alternate efficacious remedy to challenge Ext.P6 order by way of statutory appeal as provided under Order XLIII Rule 1(q) of the CPC. W.P.(C).No.25309 of 2009 - O 3 When such a remedy is available the writ jurisdiction cannot be invoked to examine the propriety or correctness of the order passed by the court below. Reserving the right of the petitioner to challenge Ext.P6 order by way of an appeal the writ petition is closed. It is also open to the petitioner to seek for exemption of the time during which the writ petition was prosecuted before this Court, in entertaining the appeal, if any, preferred, invoking Section 14 of the Limitation Act. If any such application is filed, needless to point out the court to which appeal, it any, preferred has to consider it and pass appropriate orders. Subject to the above observation, writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-