IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 OP(C).No. 2166 of 2011(O) ------------------------- OS.120/2004 of PRL. MUNSIFF COURT, KOZHIKODE-I .................... PETITIONER: ---------------- M.MOHANAN, AGED 53 YEARS, S/O.RAGHAVAN NAIR, MANOLI HOUSE, BEPUR NORTH POST, KOZHIKODE. BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENT(S): --------------------- 1. P.P.BALAKRISHNAN, S/O.KUNJI PARACHAN, GANG MAZDOOR/WATCHMAN, ENGINEERING SECTION, KOZHIKODE CORPORATION, RESIDING AT WINNERS APARTMENT, 1ST FLOOR, DOOR NO.30/575, POONGOTTUKULAM, THRIKKANDIYOOR POST, TIRUR, MALAPPURAM-676 101. 2. KOZHIKODE COPORATION, REPRESENTED BY ITS SECRETARY (GARNISHEE), CORPORATION BUILDING KOZHIKODE-673 001. R2 BY ADV. SRI.K.D.BABU, SC., KOZHIKODE CORPORATION THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2166/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT IN O.S. NO.120/2004 BEFORE THE 1ST ADDITIONAL MUNSIFF'S COURT, KOZHIKODE. P2: COPY OF THE E.P.NO.315/2009 IN O.S. NO.120/2004 BEFORE THE PRINCIPAL MUNSIFF'S COURT - 1, KOZHIKODE. P3: COPY COF THE AFFIDAVIT E.A. NO.122/2010 IN E.P.NO.315/2010 IN O.S. NO.120/2004 BEFORE THE PRINCIPAL MUNSIFF'S COURT - 1., KOZHIKODE. P4: COPY OF THE COUNTER FILED BY THE 2ND RESPONDENT IN E.A. NO.122/2010 IN E.P. NO.315/2009 IN O.S. NO.120/2004 BEFORE THE PRINCIPAL MUNSIFF'S COURT-1., KOZHIKODE. P5: COPY OF THE ORDER DATED 22/06/2010 IN E.A. NO.122/2010 IN E.P. NO.315/2009 IN O.S. NO.120/2004 BEFORE THE PRINCIPAL MUNSIFF'S COURT - 1., KOZHIKODE. P6: COPY OF THE ORDER IN E.A. NO.201/2010 IN E.A. NO.122/2010 IN E.P. NO.315/2009 IN O.S. NO.120/2004 BEFORE THE PRINCIPAL MUNSIFF'S COURT - 1., KOZHIKODE. P7: COPY OF THE AFFIDAVIT WITH PETITION, E.A.NO.27/2011 IN E.P. NO.315/2009 IN O.S. NO.120/2004 BEFORE THE PRINCIPAL MUNSIFF'S COURT - 1, KOZHIKODE. P8: COPY OF THE COUNTER IN E.A.NO.27/2011 IN E.P. NO.315/2009 IN O.S. NO.120/2004 BEFORE THE PRINCIPAL MUNSIFF'S COURT - 1, KOZHIKODE. P9: COPY OF THE ORDER DATED 19/03/2011 IN E.A.NO.27/2011 IN E.P. NO.315/2009 IN O.S. NO.120/2004 BEFORE THE PRINCIPAL MUNSIFF'S COURT - 1, KOZHIKODE. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2166 of 2011 --------------------------------------- Dated this 08th day of July, 2011 JUDGMENT Notice to the first respondent is dispensed with since he could not be served in the execution petition as well. 2. The decree holder, unsuccessful in reaping fruits of the decree for recovery of money from the first respondent has come to this Court with this original petition. The decree was passed on 20.07.2004. After about 5 years petitioner filed E.P.No.315 of 2009 before learned Principal Munsiff-I, Kozhikode for execution of the decree. Various steps were taken to release the amount from the salary of first respondent payable by the second respondent, his employer (the Corporation of Calicut). But, all those attempts failed. In the meantime, it is the case of petitioner that learning about steps petitioner was taking for attachment of salary, first respondent even shifted his residence to Tirur, in Malappuram district and made his presence scarce. The last application of petitioner filed in the executing court is E.A.No.27 of 2011 to direct the second respondent (described as garnishee) to deposit in the executing court amount due to the first respondent from the second respondent. That application O.P(C).No.2166 of 2011 -: 2 :- was dismissed by Ext.P9, order. The said order is under challenge. Learned counsel has submitted that second respondent was bound to deposit the amount due to the first respondent in the executing court. Alternatively it is requested that second respondent may be directed to file a statement in the executing court regarding the total amount payable to the first respondent and its break up figure so that it is open to the petitioner to attach the attachable portion of the amount. Learned counsel for second respondent submitted that second respondent had submitted before the executing court that a total sum `.2,64,611/- was due to the first respondent as death cum retirement gratuity. 3. As things stand now, there can be no direction to the second respondent to deposit the amount since the amount in question was not attached and the second respondent cannot be said to be the garnishee. I therefore do not find reason to interfere with Ext.P9, order but, that cannot prevent petitioner from filing an application before the executing court to direct second respondent to file a filing a statement showing the actual amount if any due to the first respondent as also its break up figure, so that, as claimed by petitioner he can take steps to attach the attachable portion of the said amount and direct the O.P(C).No.2166 of 2011 -: 3 :- second respondent to deposit the said amount in the executing court. Resultantly this original petition is disposed of in the following lines: It is made clear that notwithstanding Ext.P9, order or any previous orders passed by the executing court, it is open to the petitioner to file application in the executing court to direct the second respondent file a detailed statement showing the total amount, if any payable to the first respondent, its break up figure and its nature so that, it is open to the petitioner to take necessary steps as provided under law for attachment of the attachable portion if any of the amount. If any such amount is attached it is open to the executing court to direct the second respondent to deposit such amount in Court. (THOMAS P JOSEPH, JUDGE) Sbna/-