IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 WP(C).No. 25791 of 2008(U) -------------------------- {IN EP 207/2004 IN OS.73/2003 fo THE ADDL.SUB COURT, ALAPPUZHA} .................... PETITIONER(S): --------------- SHAIJU JOSEPH, S/O. JOSEPH, AGED 30 MATTATHIL HOUSE, THRIKODITHANAM MURI AND VILLAGE,CHANGANACHERRY. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT(S): --------------- 1. MATHEW P. VARGHESE, PUTHENPARAMBIL, PANDANGERI MURI EDATHUVA VILLAGE, PANDANGERI P.O. 2. THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, CHENGANNUR. R2 BY GOVERNMENT PLEADER SMT.REKHA C. NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25791 of 2008 :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE APPLICATION FOR CALLING AMOUNT BEFORE THE COURT FILED BY PETTIONER. EXT.P2: TRUE COPY OF THE OBJECTION DATED 22.6.06 FILED BY 2ND RESPONDENT. EXT.P3: TRUE COPY OF THE AFFIDAVIT FILED BY 2ND RESPONDENT ON 6.9.07. EXT.P4: TRUE COPY OF THE PROCEEDINGS DATED 11.1.08 IN E.P.NO.207/04 IN O.S.73/03. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S. SATHEESACHANDRAN, J. = = = = = = = = = = = = = = = = = = = = W.P.(C)No.25791 of 2008 = = = = = = = = = = = = = = = = = = = = Dated this the 19th February, 2010. JUDGMENT The writ petition is filed seeking the following reliefs: "a) to call for the records which lead to the issuance of Ext.P4 and to issue a writ in the nature of certiorari or any other appropriate writ order or direction quashing the same; b) to issue a writ of mandamus or any other order, or direction commanding the Sub Court, Alappuzha to direct the 2nd respondent to deposit the amount attached in E.P.No.207 of 2004 in O.S.No.73 of 2003 before the Sub Court, Alappuzha forthwith; c) to issue such other order or direction as this Hon'ble Court deems fit and proper to grant in te nature and circumstances of the case." 2. The petitioner is the decree holder in O.S.No.73/03 on the file of the Additional Sub Court, W.P.(C)No.25791 of 2008 :: 2 :: Alappuzha. The decree being executed in the execution petition is one passed in the suit for money and the 1st respondent is the decree holder. In execution of the decree, the petitioner/decree holder applied for attaching the amount due to the judgment debtor from the 2nd respondent State towards the execution of a contract work. In response to the notice issued the 2nd respondent entered appearance and filed objections. Ext.P1 is the copy of the application moved by the petitioner for attachment and Ext.P2 is the objection filed by the 2nd respondent. After considering the objections, a sum of Rs.3,65,788/- due to the judgment debtor/1st respondent was ordered to be kept under attachment by the 2nd respondent by orders issued by the court. The grievance of the decree holder is that after seeking several adjournments for tendering the amount before the court, the 2nd respondent garnishee filed a petition Ext.P3 contending that the attachment order cannot be given effect to in view of the termination of the contract warranting re-fixation of the liability in respect of the work entrusted to the judgment debtor. Accepting the W.P.(C)No.25791 of 2008 :: 3 :: case canvassed by the 2nd respondent garnishee, the court ordered for lifting the attachment. Ext.P4 is that order. Propriety and correctness of Ext.P4 is challenged in this writ petition, invoking the supervisory jurisdiction vested with this court under Section 227 of the Constitution of India. 3. This court has earlier passed an order not to release the sum ordered attachment until further orders, if the same has not already been released. Learned Government Pleader submits that the same has not been released till date. The learned counsel for the decree holder inviting my attention to Ext.P4 challenged in the writ petition submitted that the court below has not adverted to the previous order passed after considering Ext.P2 objections. There was no circumstance worthy of consideration for vacating the attachment, is the submission of the counsel. Whatever that be, I find, under order XXI Rule 46(H) of the Code of Civil Procedure the impugned order is open to an appeal before the competent forum. When a statutory remedy by way of an appeal is W.P.(C)No.25791 of 2008 :: 4 :: provided invoking the writ jurisdiction to challenge the correctness of that order cannot be appreciated. Petitioner, if so advised, can challenge the impugned order preferring an appeal as provided by law. If any such appeal is filed within a period of six weeks from the date of this judgment, the court concerned shall grant exemption to the petitioner if the appeal is otherwise found maintainable, the time during which this writ petition was prosecuted before this court. The interim order passed by this court shall continue for a period of two months. Writ petition is disposed of as above. sd/- (S.S. SATHEESACHANDRAN) JUDGE SK/- //true copy//