IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No. 3204 of 2009(F) ------------------------------------------ OS.495/1998 of PRL.M.C., KOCHI .................... PETITIONER: T.K.KUNJUMON, AGED 45 YEARS, S/O.KUNJU KUNJU, RESIDING AT THURUTHUKATT HOUSE, MARATHURUTH DESOM, AYEMANAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENT: 1. LITTLE FLOWER KURIES AND ENTERPRISES LTD., FORT KOCHI. 2. JOSEPH PAUL.K.C., D.E.O.,UNION BANK OF INDIA, SANTHANPARA BRANCH, IDUKKI. 3. DANTE MATHEW, S/O.LATE MATHEW, EDAMATOOM, C/O.M.A.JOHN, MURICKANAMPILLY HOUSE, KONTHURUTHY, THEVARA P.O. 4. P.D.PAULOSE, PUTHENVEETTIL HOUSE, NEAR POLAKANDA JUNCTION, CHULLICKAL MURI, RAMESWARAM VILLAGE, KOCHI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.3204 of 2009 F -------------------------- JUDGMENT This writ petition has been filed by the second judgment debtor in O.S.No.495/98 on the file of the Munsiff's Court, Kochi. O.S.No.495/08 was a suit filed by Little Flower Kuries & Enterprises Ltd., Fort Kochi for recovery of money on the strength of a kuri security bond alleged to have been executed, inter alia, by the petitioner, who is the second defendant in the suit. 2. It is seen from Exhibit P1 judgment that the defendants in the suit, except the fourth defendant, who is one of the legal representatives of a surety, remained absent and ex parte. The suit was decreed with costs against defendants 1 and 2. As per Exhibit P2 order, an amount of Rs.4,000/- from the monthly salaries of the petitioner/second judgment debtor was ordered to be attached. The said order is dated 9.1.2008. It is submitted that pursuant to Exhibit P2 order, the WPC 3204/09 2 petitioner/second judgment debtor approached the court below filing Exhibit P3 application to stay the salary attachment order and to conduct a high level enquiry regarding forgery and impersonation that took place in the court contending that he had not received any summons; that he had not executed any vakkalath in favour of Advocate Sri. A.X.Varghese, who is seen to have filed vakkalath for him in the suit and that he had not filed any written statement in the suit as is seen to have been filed, signed by himself and his Lawyer Sri.A.X.Varghese. An affidavit in support of the said application was filed by Advocate Sri.A.X.Varghese and copy thereof is Exhibit P4 filed along with E.A.No.155/08 praying for the said affidavit also be taken into consideration for the purpose of enquiry into E.A.No.154/08 (Exhibit P3). 3. The court below by Exhibit P5 common order passed on E.A.Nos.154/08 and 155/08 in E.P.No. 120/07 in O.S.No.495/98 dismissed both the WPC 3204/09 3 applications with costs. It is assailing Exhibit P5 order that this writ petition is filed. 4. However, pursuant to Exhibit P5 common order, Exhibit P6 attachment order was issued on 16.1.2009 directing attachment at the rate of Rs.4,000/- per month from the monthly salaries of the petitioner/second judgment debtor. 5. It is submitted by counsel for the petitioner that another suit O.S.No.581/98 was also there against the petitioner, wherein also, the very same fraud has been practised and an ex parte decree has been obtained and when the matter came up before this Court on motion made by the petitioner filing W.P.(C)No.11281/08, this Court, vide Exhibit P8 judgment, without considering the merits of the petition, quashed the order, whereby attachment was ordered as per order on E.A.No. 337/07 in E.P.No.26/05 in O.S.No.581/98 and remitted the matter back to the court below to conduct a proper enquiry on the allegations raised WPC 3204/09 4 in the petition and pass appropriate orders on E.A.No.337/07 in view of the serious allegations that are raised in the said application and that too supported by the affidavit of a senior Lawyer. It is also submitted by counsel for the petitioner that despite the directions issued by this Court in Exhibit P8 judgment, no proper enquiry has been conducted in E.A.No.337/07 and that is pending in the court below. 6. In the nature of the allegations raised by Advocate Sri.A.X.Varghese, counsel for the petitioner that his vakkalath has been caused to be filed and the written statement of the petitioner also has been caused to be filed by some one impersonating and fraudulently affixing his forged signatures in the vakkalath and in the written statement. He further asserts that the petitioner had not signed either in the vakkalath or in the written statement and that he had not been served with any summons in the suit and everything was WPC 3204/09 5 being fraudulently brought about by the decree holder to obtain a decree, when according to him, the petitioner had not even stood as surety for receipt of the kuri amount, which was the subject matter of O.S.Nos.495/98 and 581/98. This is a matter which requires thorough investigation by examining all the persons, who are material witnesses to speak on the correctness or otherwise of the matters in dispute, beginning with the executants and sureties of the kuri security bond involved in both the suits, petitioner, his Lawyer and the attestor to the vakkalath, as seen from the vakkalath filed in the court below, the suit summons served on the petitioner/second judgment debtor, witnesses thereto, the process server, who effected service of summons as also any other material witnesses, whose evidence, the court below feels, is necessary to be obtained for a just and correct conclusion being arrived at on the matters in dispute. In the event of expert opinion being WPC 3204/09 6 found necessary as regards the handwriting and signatures either of the petitioner or his counsel or both, that also shall be got down in the enquiry by the court below. Counsel for the petitioner Sri.A.X.Varghese submits that the petitioner is ready to meet the entire expenses for the conduct of enquiry, summoning the witnesses, forwarding documents, etc. for expert opinion so as to assist the court to come to a conclusion as regards the genuineness of the allegations made. 7. In the circumstances, it is ordered that till the enquiry is completed and a finding arrived at on the above matters, execution of the decree in O.S.No.495/98 shall stand stayed. Considering the serious nature of the allegations and the nature of enquiry to be conducted and considering the nature of exhibit P5 order passed by the Principal Munsiff, Kochi despite existence of such serious allegations, I am of the view that enquiry directed to be conducted has to be ordered to be conducted WPC 3204/09 7 by the Principal Munsiff, Ernakulam. For the purpose, I order that O.S.No.495/98 pending on the execution side along with the trial records and execution records shall forthwith be transferred to the Principal Munsiff's Court, Ernakulam. Counsel for the petitioner shall produce a copy of this judgment before the Principal Munsiff's Court, Ernakulam with notice to the counsel for the respondent and get the matter posted for enquiry at an early date without the petitioner making this as an opportunity to avoid payment of the decree debt for a considerable length of time. The writ petition is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner urgently. 3rd February, 2009 (K.P.Balachandran, Judge) tkv