IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 OP(C).No. 3683 of 2011(O) -------------------------------------- EP.437/2007 IN OS.459/2002 OF SUB COURT, NORTH PARAVUR .................... (S): PETITIONER ------------------------------ CHARLY V.JOSE, S/O.PHILIP JOSEPH, VALIYAVEETTIL HOUSE, ALUVA KARA, ALUVA WEST VILLAGE. BY ADV. SRI.DINESH R.SHENOY, SRI.R.V.RAHUL. RESPONDENT(S): --------------------------- PAULOSE, S/O.LONAN, MENACHERRY, KOTTAPPURAM KARA, ALANGAD VILLAGE-683 511. BY ADV. SRI.K.NARAYANAN (PARUR), SRI.DEEPAK JOY.K., SRI.ALUNKAL GEORGE. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 3683 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT-P1: TRUE PHOTOCOPY OF E.P.NO.437/2007 IN O.S.459/2002, SUB COURT,NORTH PARAVUR. EXT-P2: TRUE PHOTOCOPY OF THE JUDGMENT DATED 20/8/2008 IN RFA.195 AND 196/2008. EXT-P3: TRUE PHOTOCOPY OF E.A.469/2009 IN E.P.NO.437/2007 IN O.S.459/2002, SUB COURT, NORTH PARAVUR. EXT-P4: TRUE PHOTOCOPY OF THE OBJECTION DATED 4/6/2010 IN E.A.469/2009 IN E.P.NO.437/2007 IN O.S.459/2002, SUB COURT, NORTH PARAVUR. EXT-P5: TRUE PHOTOCOPY OF E.A.NO.745/2011 IN E.P.NO.437/2007 IN O.S.459/2002,SUB COURT, NORTH PARAVUR. EXT-P6: TRUE PHOTOCOPY OF THE OBJECTION DATED 1/7/2011 IN E.A.745/2011 IN E.P.NO.437/2007 IN O.S.459/2002, SUB COURT, NORTH PARAVUR. EXT-P7: TRUE PHOTOCOPY OF THE ORDER DATED 22/10/2011 IN E.A.NO.745/2011 IN E.P.NO.437/2007 IN O.S.459/2002, ADDITIONAL SUB COURT, NORTH PARAVUR. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3683 of 2011 -------------------------------------- Dated this the 30th day of November, 2011. JUDGMENT Ext.P7, order dated 22.10.2011 on E.A.No.745 of 2011 in E.P.No.437 of 2007 in O.S.No.459 of 2002 of the court learned Additional Sub Judge, North Paravur is under challenge. Respondent obtained a decree for recovery of money against the judgment debtor and sought execution against property (allegedly) belonging to the judgment debtor, in E.P.No.437 of 2007. There was an attachment of the said property as well. At that time, petitioner made his appearance in the executing court with a claim petition under Rule 58 of Order XXI of the Code of Civil Procedure (for short, “the Code”) making a claim over the property attached. While that claim petition was pending, petitioner filed E.A.No.745 of 2011 offering to deposit the decree amount and interest due and requesting to release the attachment. That application was resisted by the respondent and it resulted in Ext.P7, order. Learned Sub Judge took the view that the request made by petitioner who has only made a claim over the property under Rule 58 of Order XXI of the Code cannot be allowed. 2. Learned counsel for petitioner has asserted the offer that petitioner is prepared to deposit the entire amount due under the decree including interest and costs in a nationalized bank in the name of learned Sub Judge and execute a bond undertaking that in case the claim petition is dismissed it will be open to OP(C)No.3683/2011 2 the respondent/decree holder to realise the decree amount with interest and cost as on the day the request for realisation is made from the amount in deposit including the interest that accrues. Learned counsel requested that in such circumstances it is within the power of the executing court be it under Section 151 of the Code to allow the request and release attachment. It is also pointed out by the learned counsel that according to the petitioner, the decree was obtained collusive and in certain other proceedings also petitioner had to ward of execution proceeding against the property by discharging liability of judgment debtor. 3. Learned counsel for respondent/decree holder has contended that since the claim made under Rule 58 of Order XXI of the Code is yet to be determined, petitioner cannot make any claim over the property including a request to lift the attachment. Reliance is placed on the decision in Barnes Investments Ltd. and others v. Raj K.Gupta and others ((2001) 7 SCC 94), in particular, observations in paragraphs 15 to 17. 4. In the decision relied by learned counsel, a claim was made by petitioner under Rule 58 of Order XXI of the Code and a request to lift attachment over certain properties. That request was allowed by the executing court and the attachment was lifted subject to the condition that attachment order dated 04.05.1994 will stand modified to the extent that 3000 sq. ft. of the covered area in the superstructure proposed to be constructed on the land in OP(C)No.3683/2011 3 question shall remain in attachment till the disposal of execution petition. That order was challenged before the Supreme Court. The Supreme Court referred to the position of law covered by Rule 58 of Order XXI of the Code and observed in paragraph 17 of the decision that it is only upon determination of the questions referred to in Sub-rule (2) that the court in accordance with such determination may either allow the claim or objection, disallow the same or continue the attachment subject to any mortgage, charge or other interest in favour of any person or pass such order as in the circumstances of the case it deems fit. Having regard to the factual situation, the Supreme Court allowed the appeal and set aside the order of learned Sub Judge. 5. It is however, pointed out by the learned counsel for petitioner that the said decision was rendered on the particular facts of the case where the Supreme Court found that security offered was not in respect of any existing property. Learned counsel has invited my attention to the observation in paragraph 15 that “if the court was minded to lift the attachment temporarily it should therefore have atleast secured the decretal amount”. 6. Taking a clue from the observation contained in paragraph 15 of the decision referred supra it is pointed by the learned counsel that in the present case it is not as if security for the amount due was not given. It is the case of petitioner offering to deposit the entire amount due under the decree in a nationalized bank in the name of the learned Sub Judge, so that, if ultimately OP(C)No.3683/2011 4 claim petition is dismissed, it is open to the decree holder to realise the entire amount due as on the date the request for realisation of the amount from the amount in deposit. 7. I am inclined to think that interest of both parties could be secured if, along with that petitioner also executes a security bond in the name of learned Sub Judge undertaking that respondent, in case the claim petition is dismissed could realise the entire decree amount due as on the day the request is made from the amount in deposit. 8. In view of the above I am inclined to interfere with Ext.P7, order. Resultantly this Original Petition is allowed. Ext.P7, order is set aside and E.A.No.745 of 2011 is allowed as follows: i. Petitioner shall deposit in a nationalized bank of his choice the entire amount due under the decree as on the date of deposit (including interest and cost) in the name of learned Additional Sub Judge, North Paravur for such length of period as the learned Sub Judge decides. ii. Petitioner, along with the deposit as aforesaid shall execute a security bond in the name of learned Sub Judge that in case the claim petition is ultimately dismissed, it is open to the respondent/decree holder to realise the OP(C)No.3683/2011 5 amount due under the decree including interest and costs as on the date the request is made after dismissal of the claim petition from the amount in deposit (including the interest that has accrued on the deposit). iii. It is made clear that in case the claim petition is dismissed by the executing court it will be open to the respondent/decree holder to realise the amount due from the amount in deposit on furnishing sufficient security to the satisfaction of the court below which again shall be subject to the ultimate decision on the appeal if preferred on the claim petition. iv. It is directed that petitioner shall not withdraw the whole or any portion of the amount deposited or raise any loan on the security of the said amount during the time the bond remains force. v. Executing court is directed to expedite disposal of the claim petition after giving parties opportunity to adduce evidence. THOMAS P.JOSEPH, Judge. cks