IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 OP(C).No. 437 of 2010(O) ------------------------ AGAINST THE ORDER IN EP.91/1999 IN OS.459/1997 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER: ------------------------------ M/S.COCHIN STOCK EXCHANGE LTD, M.E.S.BUILDINGS, KALOOR,ERNAKULAM, REP.BY ITS EXECUTIVE DIRECTOR. BY ADV. SRI.KOSHY GEORGE SRI.GEORGE ZACHARIAH ERUTHICKEL RESPONDENTS: --------------- 1. JOSE JOSEPH, THOPPIL HOUSE, KRUPPAM ROAD,THRISSUR-87 2. K.T.TITUS,KOCHERY HOUSE, SOUTH BRIDGE AVENUE,ERNAKULAM KOCHI-36. ADV. SRI.GEORGE KARITHANAM VARGHESE FOR R1 SRI.JOSE KURIAKOSE (VILANGATTIL) FOR R1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 437 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : JUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA IN E.S.A NO.1 OF 2002 EXHIBIT P2 : ORDER DTD 14.10.2009 IN E.A.NO.206 OF 1999 ON THE FILE OF THE HONOURABLE SUBORDINATE JUDGE'S COURT, ERNAKULAM EXHIBIT P3 : E.A.NO.1186 OF 2009 IN E.P.91/99 IN O.S.459/97 EXHIBIT P4 : MEMORANDUM OF APPEAL IN A.S.NO.165 OF 2010 ON THE FILE OF the HONOURABLE DISTRICT COURT, ERNAKULAM True Copy THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.437 of 2010 --------------------------------------- Dated this 24th day of November, 2010 JUDGMENT The Stock Exchange, garnishee in E.A.No.91 of 1999 in O.S.No.459 of 1997 of the court of learned Sub Judge, Ernakulam is the petitioner before me. Respondent No.1 has obtained a decree for recovery of money against respondent No.2 and in execution amount allegedly belonging to respondent No.2 and in deposit with the petitioner was attached. Pursuant thereto, executing court as per order on E.A.No.206 of 1999 directed petitioner to deposit Rs.1,40,000/- in court. That order was challenged in A.S.No.302 of 2000 before the learned District Judge. Learned District Judge granted stay of execution of the order on condition of deposit of the amount. Accordingly the amount was deposited (there is dispute whether the amount was deposited in the District Court or in the executing court). Later, the appeal was dismissed against which petitioner filed E.S.A.No.1 of 2002. That appeal was allowed by way of remand directing executing court to decide the matter afresh as provided under Rules 46D, E and F of Order XXI of the Code of Civil Procedure ((for short, " the Code”) and after hearing third parties O.P(C).No. 437 of 2010 : 2 : who made claims against respondent No.2 as to the amount in deposit with the petitioner. Executing court recorded evidence and allowed E.A.No.206 of 1999 by Ext.P2, order. Petitioner was directed to remit the amount in the executing court. Petitioner challenged the order on E.A.No.206 of 1999 in the District Court in A.S.No.165 of 2010 with I.A.No.2984 of 2010 to condone the delay of 61 days. Learned counsel for petitioner contends that since respondent No.1 could not be served and respondent No.2 is not available notice on I.A.No.2984 of 2010 could not be served and hence the application to condone the delay could not be disposed of. It is also submitted by learned counsel that since the delay is not condoned petitioner was not able to file application for stay in A.S.No.165 of 2010. Learned District Judge has directed petitioner to take out paper publication against respondent No.2 on I.A.No.2984 of 2010 and the appeal is posted on 07-12-2010. In the meantime respondent No.1 moved the executing court by filing application to direct petitioner to deposit the amount and on that application executing court has passed an order on 06-08-2010 directing petitioner to deposit the amount in ten days. Petitioner filed E.A.No.656 of 2010 for review of the said order on the ground that the appeal against the order on E.A.No.206 of 1999 is filed before learned District Judge. Petitioner filed E.A.No.655 of 2010 for stay of further O.P(C).No. 437 of 2010 : 3 : proceedings in the executing court pursuant to the order on E.A.No.206 of 1999. Counter move was made by respondent No.1. He filed E.A.No.674 of 2010 under Rule 37 of Order XXI of the Code to proceed against executive director of petitioner as if he is a judgment debtor and as the petitioner did not comply with the order on E.A.No.206 of 1999. Executing court has ordered warrant of arrest to the executive director of petitioner. Orders on E.A.Nos.655, 656, 674 of 2010 in E.P.No.91 of 1999 are under challenge in this petition. Learned counsel contended that if the executive director is arrested and detained he will be put to irreparable injury. Learned counsel for respondent No.1 has referred me to the judgment of this court in E.S.A.No.1 of 2002 and contended that once petitioner deposited the amount after the claim of third parties is disposed of, it amounts to discharge of petitioner from all liability to pay and hence, there is no local standi for petitioner to challenge in E.A.No.206 of 1999. 2. I am not going into the question whether challenge made by petitioner in A.S.No.165 of 2010 is sustainable or not. That is a matter which learned District Judge hearing that appeal has to consider and decide. Now the appeal could not be taken on file since I.A.No.2984 of 2010 was not disposed of for the reason that respondent Nos.1 and 2 could not be served on that application. Having regard to the circumstances stated before me O.P(C).No. 437 of 2010 : 4 : I consider it appropriate to direct that further proceedings pursuant to the order on E.A.Nos.655, 656 and 674 of 2010 will stand in abeyance until disposal of I.A.No.2984 of 2010 in A.S.No.165 of 2010 of the court of learned District Judge, Ernakulam but, subject to conditions. Resultantly this petition is allowed in the following lines: (i) Further proceedings pursuant to the orders on E.A.Nos.655, 656 and 674 of 2010 in E.P.No.91 of 1999 in O.S.No.459 of 1997 of the court of learned Sub Judge, Ernakulam will stand in abeyance till the disposal of I.A.No.2984 of 2010 in A.S.No.165 of 2010 subject to the condition that amount deposited by the petitioner, be it in the executing court or in the District Court as per the order in A.S.No.302 of 2000 will be treated as deposit made by petitioner pursuant to the order on E.A.No.206 of 1999 (which is under challenge in A.S.No.165 of 2010) and of course, subject to the result of that appeal. (ii) Counsel for respondent No.1 undertakes that respondent No.1 will appear in I.A.No.2984 of 2010 (in A.S.No.165 of 2010) in the court of learned District Judge on 07-12-2010 without further notice. (THOMAS P JOSEPH, JUDGE) Sbna/-