IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 OP(C).No. 341 of 2011(O) ------------------------ AGAINST THE ORDER IN EA 298/2010 IN EP 92/2010 IN OS.87/2008 of MUNSIFF COURT, VAIKOM .................... PETITIONER : ------------------ PADMINI,CHERANALLOOR HOUSE, KADUTHURUTHY, VAIKOM. BY ADV. SRI.S.ANANTHAKRISHNAN RESPONDENT(S): --------------- 1. C.O.MARYKUTTY, PAYYAPPALY HOUSE, THURUTHYPPALLY BHAGOM, NJEEROOR,VAIKOM-686612. 2. VASUDEVAN,CHERANALLOOR HOUSE, KADUTHURUTHY,VAIKOM-686 604. 3. JAYADEVAN,CHERANALLOOR HOUSE, KADUTHURUTHY,VAIKOM-686 604. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ---------------------------------------- O.P.(Civil) No.341 of 2011 O ----------------------------------------- Dated this the 25th day of January, 2011 JUDGMENT The petitioner is not a party to O.S.No.87 of 2008. That suit was filed by C.O.Marykutty, the first respondent herein, against Vasudevan, Jayadevan and Girijamma. Vasudevan is the husband of the petitioner. The suit was filed for return of the advance amount paid by the plaintiff to the first defendant for purchase of the immovable property. The third defendant is the purchaser of the property from the first defendant (Vasudevan). The second defendant is the son of Vasudevan. The trial court decreed the suit in part and passed a decree for recovery of a sum of ` 50,000/- with interest from the first defendant and all his assets. The decree holder levied execution. It is stated that though the decree is against the first defendant alone, the Execution Petition was filed against defendants 1 and 2. O.P.(Civil) No.341 of 2011 2 Exhibit P3 application dated 24.7.2010 was field by the decree holder for attachment of two items of immovable properties. In the affidavit accompanying the application for attachment, it was stated that the first defendant sold his property, which was the subject matter of the agreement for sale and with the proceeds of that sale, an item of immovable property was purchased by him in the name of his wife, the Writ Petitioner herein. However, the Writ Petitioner herein was not made a party to that application. 2. It is stated that an attachment order was passed. The judgment debtor filed objections to the application for attachment and contended that the property belongs to the wife of the first judgment debtor. While so, it is stated that the decree holder filed an application to implead the petitioner herein as an additional respondent in the execution proceedings. It is stated that the petitioner did not receive any notice in that application. While so, on 4th January 2011, the O.P.(Civil) No.341 of 2011 3 executing court passed an order in E.A.No.298 of 2010 attaching item No.2 of the attachment schedule properties. According to the petitioner, item No.2 belongs to her. The judgment debtor has no title or right in respect of that property. It is also stated that without issuing notice to the petitioner, the court below passed the order dated 4.1.2011 attaching the properties. 3. The relief prayed for in the Original Petition is to issue a writ of certiorari to set aside the order dated 4th January, 2011 and also the notice dated 18th January 2011, issued under Rule 54 of Order 21 of C.P.C. 4. The petitioner is not a party to the suit. According to her, the property belonging to her was attached. If so, the petitioner has an effective alternative remedy to file an application under Rule 58 of Order 21 of the Code of Civil Procedure. When such an application is filed, the executing O.P.(Civil) No.341 of 2011 4 court is bound to consider the right, title and interest of the person who claims right over the property sought to be attached. Any order passed under Rule 58 shall have the same force for the purpose of appeal, as if it were a decree. In an application under Rule 58, the enquiry to be made is something similar to a suit. When such a very effective alternative remedy is available to the petitioner, the limited jurisdiction available in an Original Petition under Article 227 to quash the order attaching the properties need not be resorted to by the petitioner. 5. For the aforesaid reasons, on the ground that the petitioner has an effective alternative remedy, the Original Petition is dismissed. It is made clear that I have not expressed any views on the merits of the claim made by the petitioner. The learned counsel for the petitioner submitted that the O.P.(Civil) No.341 of 2011 5 application for attachment made by the decree holder itself is not maintainable, going by the averments made in that application. Rule 54 or Order 21 would apply only when the property belongs to the judgment debtor. In the present case, even the decree holder says that the property stands in the name of the wife of the judgment debtor. However, it is stated by him that the property was purchased by the funds of the judgment debtor. It is not necessary to decide that question in a Writ Petition under Article 227 of the Constitution of India. All these questions shall be considered by the executing court in a petition under Rule 58 of Order 21 of C.P.C. K.T.SANKARAN JUDGE csl