IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 WP(C).No. 21304 of 2010(O) -------------------------- AGAINST THE ORDER IN EA 866/2009 IN EP 452/2009 IN OS.10/1993 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- 1. STATE OF KERALA,.REP.BY THE SECRETARY TO GOVERNMENT, (IRRIGATION DEPARTMET)WATER RESOURCES DEPARTMENT, SECRETARIAT,TRIVANDRUM. 2. THE SUPERINTENDING ENGINEER, MINOR IRRIGATION SOUTH CIRLCE,TRIVANDRUM. 3. THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, KAKKAND P.O.,ERNAKULAM. BY GOVERNMENT PLEADER SHRI B.JAYASURYA RESPONDENT(S): --------------- 1. BASIL YELDHOSE, S/O.LATE YELDO PAULOSE, AGED 26 YEARS RESIDING AT KUNNASSERIL HOUSE, MATHIRAPPALLY, KOTHAMANGALAM VILLAGE AND TALUK, ERNAKULAM DISTRICT, MATHIRAPPALLY P.O., PIN 686691. 2. BINSON YELDHOSE, S/O.LATE YELDO PAULOSE AGED 26 YEARS RESIDING AT KUNNASSERIL HOUSE, MATHIRAPPALLY, KOTHAMANGALAM VILLAGE AND TALUK, ERNAKULAM DISTRICT , MATHIRAPPALLY P.O., PIN 686691. 3. RAHEL PAULOSE, W/O.LATE K.P.PAULOSE, RESIDING AT KUNNASSERIL HOUSE, MATHIRAPPALLY, KOTHAMANGALAM VILLAGE AND TALUK, ERNAKULAM DISTRICT, MATHIRAPPALLY P.O., PIN 68669. ADV. SRI.K.BABU THOMAS FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.21304/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE DECREE DATED 22.10.1998 IN OS 10/93 EXT.P1(a) TRUE COPY OF JUDGMENT DATED 22.10.1998 IN OS 10/93 E3XT.P2 TRUE COPY OF FINAL DECREE DATED 15.12.2007 IN IA NO.5925/99 EXT.P2(a) TRUE COPY OF FINAL JUDGMENT DATED 15.12.2007 IN IA NO.5925/99 EXT.P3 TRUE COPY OF THE OBJECTION DATED 1.2.2010 IN EP NO.452/2009 EXT.P4 TRUE COPY OF THE OBJECTION DATED 1.2.2010 IN EA NO.866/2009 EXT.P5 TRUE COPY OF THE ORDER OF THE EXECUTION COURT . //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.21304 of 2010 -------------------------------------- Dated this the 8th day of November, 2010. JUDGMENT Ext.P5, order passed by the learned Principal Sub Judge, Ernakulam is under challenge in this petition at the instance of judgment debtors. Predecessor in interest of respondents had a work contract with petitioners and for the amount due, he filed the suit (O.S.No.10 of 1993). There was a preliminary decree followed by a final judgment and decree awarding certain amount to the contractor. He filed E.P.No.314 of 2000. It is not disputed that in the meantime, petitioners had deposited a sum of Rs.8,51,430/-. While so, the original decree holder died and E.P.No.314 of 2000 was closed on 16.10.2006. Thereafter the legal heirs of deceased original decree holder filed E.P.No.452 of 2009 and since petitioners did not deposit the amount executing court passed Ext.P5, order dated 08.04.2010 attaching the sales tax amount in the custody of Chairman and Managing Director, Cochin Refineries Ltd., Administrative Office, Kundannur, Maradu P.O., Thripunithura, Ernakulam. That order is under challenge at the instance of judgment debtors. Learned Government Pleader submits that attachment under Rule 46A of Order XXI of the Code of Civil Procedure (for short, “the Code”) is illegal since there was no debt due to judgment debtors in the custody of Chairman and Managing Director (referred supra) which was sought to be attached under Rule 46A of Order XXI of the Code. It is submitted that the amount deposited by petitioners was not taken into WP(C) No.21304/2010 2 account by the executing court. A further objection raised is that in view of Section 49A of the Kerala General Sales Tax Act, 1963 and Section 79 of the Kerala Value Added Tax Act, 2003 as amended by the Kerala Finance Act, 2005 no attachment could have been ordered against petitioners. 2. Now as per Ext.P5, order the amount attached is in the custody of Chairman and Managing Director of Cochin Refineries Ltd. It is seen from Ext.P5, order that attachment was made under Rule 46A of Order XXI of the Code. Under that Rule, when the amount is attached, garnishee can either deposit the amount or, appear and show cause why he shall not deposit the amount. When that remedy is available to the garnishee I do not find reason to entertain this petition filed by petitioners/judgment debtors. It is for the garnishee concerned if he is aggrieved by Ext.P5, order to challenge that order in appropriate proceedings. Hence I am not inclined to entertain this petition. 3. It is seen from Ext.P5, order that substantial amounts are due to the respondents. Learned counsel for respondents says that after death of the original decree holder respondents who are legal heirs are in difficult situation and are facing financial crisis. That certainly is a matter which petitioners/judgment debtors have to take into account rather than raising technical contentions and delaying payment of the amount due. But I am WP(C) No.21304/2010 3 inclined to grant petitioners three months time from this day to deposit the entire balance amount due as per final judgment and decree in the executing court. Until then the garnishee need not deposit the amount as ordered in Ext.P5, order in the court below. Resultantly this petition is dismissed without prejudice to the right of garnishee to challenge Ext.P5, order or to show cause why he shall not deposit the amount in executing court. However it is directed that the garnishee need deposit the amount in the court below (in case he is not showing cause in the executing court or otherwise not challenging Ext.P5, order) only in case petitioners/judgment debtors do not deposit the entire amount due under the final judgment and decree within the said period of three months from this day. THOMAS P.JOSEPH, Judge. cks