IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 OP(C).No. 1240 of 2011(O) --------------------------------- OS.65/2008 of MUNSIFF COURT, KOLENCHERRRY .................... PETITIONER: ---------------- MARY JOLLY, PADINJAREKKUTT HOUSE, ARAKULAM.P.O, THODUPUZHA, IDUKKI DISTRICT. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S): --------------------- 1. STATE BANK OF TRAVANCORE, REP. BY ITS BRANCH MANAGER, MAIN BRANCH, KOLENCHERY, KOLENCHERY.P.O, ERNAKULAM DISTRICT- 682 311. 2. S. VIJAYAN PILLAI, S/O. SANKARAN PILLAI, THACHUKUZHIYIL HOUSE, KANJIRAMATTOM.P.O, THODUPUZHA, IDUKKI DISTRICT. 3. THE HEADMASTER, ST. GEORGE U.P. SCHOOL, MOOLAMATTOM.P.O, IDUKKI DISTRICT. R1 BY ADV. SRI.SATHISH NINAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 1240/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF I.A. NO.44/2009 IN O.S. NO.65/2008 IN THE FILE OF MUNSIFF COURT KOLENCHERRRY DATED 21/05/2009. P2: COPY OF THE ORDER DATED 04/03/2011 IN E.P. NO.7/2010 IN O.S. NO.65/2008 IN THE FILE OF MUNSIFF COURT KOLENCHERRRY. P3: COPY OF THE JUDGMENT IN WPC. NO.37380/2009 IN THE FILE OF THIS HONOURABLE COURT DATED 04/08/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.1240 of 2011 --------------------------------------- Dated this 09th day of November, 2011 JUDGMENT The third respondent being an unnecessary party in this original petition is deleted from the array of parties. Registry shall carry out deletion in the cause title. 2. This original petition is filed by the additional second defendant in O.S.No.65 of 2008 of the Court of learned Munsiff, Kolencherry. That is a suit filed by the first respondent against the deceased husband of petitioner and the second respondent for recovery of money. Pending suit, the husband of petitioner died and petitioner was impleaded as additional third defendant. The suit resulted in a judgment and decree dated 17.09.2009. Pursuant to the decree, first respondent filed E.P.No.7 of 2010 and proceeded personally against petitioner. Her salary was placed under attachment. At that stage, petitioner approached this Court requesting to quash Ext.P2, order of attachment. 3. Learned counsel for petitioner contends that since petitioner is only a legal heir of deceased first defendant who O.P(C).No.1240 of 2011 -: 2 :- is said to have availed the loan, petitioner has no personal liability and hence salary of petitioner could not have been attached by Ext.P2, order. 4. Learned counsel for the first respondent submitted that as the decree stands, petitioner is personally liable and hence the executing court could not have gone behind the decree and exempted personal execution against petitioner. 5. I have been given a copy of the decree. The decree states that “the plaintiff/bank is allowed to recover an amount of `.35664/- from these defendants and their assets with 12% interest per annum from the date of suit till its realisation”. In short, the decree enables first respondent to realise the amount from petitioner and her assets. So far as the decree stands, Ext.P2 cannot be said to be illegal. Not can the executing court be asked to go behind the decree and hold that for the reason stated by petitioner, she has no personal liability. 6. Learned counsel submitted that the decree was passed against petitioner ex parte and that petitioner may be given time to request the Court to set aside the ex parte O.P(C).No.1240 of 2011 -: 3 :- decree or, to challenge the decree in appeal as provided under law. 7. Having heard counsel on both sides, I am inclined to direct that the proceedings in execution against petitioner personally will stand in abeyance for a period of fourty five (45) days from this day so that in the meantime it is open to the petitioner to take appropriate steps in the matter. This original petition is disposed of as follows: (i) It is directed that personal execution against petitioner, in E.P.No.7 of 2010 in O.S.No.65 of 2008 of the Court of learned Munsiff, Kolencherry will stand in abeyance for a period of fourty five (45) days from this day. (ii) It is open to the petitioner to take necessary steps in the matter so far as her grievance that for the liability of her deceased husband, she is not personally liable is concerned. (iii) It is made clear that this order will not stand in the way of the first respondent executing the decree either against the second respondent or, against the assets of the deceased first defendant if any, in the hands of petitioner. (THOMAS P. JOSEPH, JUDGE) Sbna/-