IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 WP(C).No. 29941 of 2009(R) -------------------------- PETITIONER: --------------- NANU, S/O.LATE EACHARAN, P.W.O., GANG MESTHIRI, SASTHAMCOTTAH, OFFICE OF THE SENIOR SECTION ENGINEER, SOUTHERN RAILWAY, MAVELIKKARA, FROM KANJIRAMVILA PADINJATTATHIL, PERINAD VILLAGE, VELLIMON P.O., KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): --------------- 1. THE DIVISIONAL MANAGER, SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM. 2. THE SENIOR SECTION ENGINEER, SOUTHERN RAILWAY, MAVELIKKARA. 3. PONNAMMA, W/O.IYYA, NELLIPALLIL VEEDU, MANJAKALA, AVANEESWARAM P.O., KUNNIKKODE, KOLLAM (FROM KANJIRAMVILA PADINJATTATHIL, PERINAD VILLAGE, VELLIMON P.O.,KOLLAM DISTRICT.) ADV.SHRI N.B.SUNIL NATH FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(C)No.29941 OF 2009 ----------------------------------------------------- DATED THIS THE 27th DAY OF OCTOBER, 2009 J U D G M E N T Basant, J. The petitioner has suffered a decree in O.S.No.310/99 passed by the Family Court, directing payment of maintenance to his wife and children at the rate of Rs.500/- per mensem. He did not challenge the order in time. Long later, along with an application to condone the inordinate delay of 1341 days, Mat.Appeal No.164/2008 was filed. The delay was directed to be condoned subject to the condition that the entire amount due shall be deposited before the Family Court. The amount was not deposited within the time or within the extended time. In these circumstances, the Mat.Appeal was rejected by separate judgment in M.A.No.164/2008. 2. In the meantime, steps were taken to execute the decree. E.P.No.26/07 was filed before the Family Court. It is not disputed that, notice was given to the learned counsel for the petitioner/judgment debtor. The court below has now issued Exhibit P1 order to respondent No.2 to attach an amount of W.P.(C)No.29941/09 R -2- Rs.8,000/- per mensem. With a copy of that order, the petitioner has rushed to this Court. He claims to be aggrieved by the said direction issued to the 2nd respondent. 3. What is his grievance? The petitioner contends that the amount of Rs.8,000/- is not available for attachment from his monthly salary in accordance with the provisions of the C.P.C. That contention must have been raised by the petitioner before the court below. We must assume, in the absence of better material, that the said contention must have been raised and considered by the court below before directing attachment of salary. Even if the petitioner has not done the same and the amount ordered to be attached is not legal and proper in the light of the provisions of the C.P.C., it is for the petitioner to approach the court below and raise the contention that the amount ordered to be attached is not really available under law for attachment. If, on the contrary, the said contention has already been considered and the direction for payment of the amount of Rs.8,000/- per mensem is ordered by the court below after considering the contention, that order must be challenged by the W.P.(C)No.29941/09 R -3- petitioner. We find no merit in the challenge raised, by producing Exhibit P1 order which is only a consequent direction issued to the 2nd respondent to attach the amount. We find no merit in the challenge raised against Exhibit P1. 4. In the result, this Writ Petition is dismissed. We may hasten to observe that this order will not fetter the rights of the petitioner to raise the grievance before the Family Court that the amount ordered to be attached is not justified by the provisions of the C.P.C. relating to attachment of salary in execution of a decree for maintenance. Needless also to say, if any such considered order has already been passed, petitioner's option to challenge such order in accordance with law shall also remain unfettered. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn