IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WP(C).No. 16045 of 2008(I) -------------------------- OS.374/2002 of II ADDL.M.C.,THRISSUR .................... PETITIONER(S): ------------------------ SREE SIVA AGENCIES, REPRESENTED BY MANAGING PARTNER, S.MANIKANTAN, S/O.K.P.SIVASANKARAN NAIR, `SIVA SAILAM', KODIMATHA, KOTTAYAM-686 039. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): ----------------------------- 1. CHOOLAYIL AGENCIES, BUILDING NO.2/932, NARAYANA JUNCTION AYIROOR, VARKKALA. 2. RAJENDRAN NAIR.K., (PARTNER OF CHOOLAYIL AGENCIES), S/O.KRISHNA PILLAI, CHOOLAYIL HOUSE, AYIROOR, VARKALA. 3. R.S.VIVEK (MINOR AND PARTNER OF CHOOLAYIL AGENCIES), REPRESENTED BY HIS FATHER-RAJENDRAN NAIR.K., CHOOLAYIL HOUSE, AYIROOR, VARKALA. 4. J.RAGESH, S/O.JAYACHANDRAN NAIR, RATHI BHAVAN, AYIROOR, VARKALA. 5. KERALA STATE FINANCIAL ENTERPRISES LTD., REGD. OFFICE-BHADRATHA, P.B.NO.510, MUSEUM ROAD, THRISSUR-680 020. 6. SPECIAL DEPUTY TAHSILDAR (RR), KERALA STATE FINANCIAL ENTERPRISES LTD., ENTERPRISES BUILDING, STATUE ROAD, THIRUVANANTHAPURAM. ADV. SRI.M.L.SAJEEVAN, SC, KSFE LTD. FOR R5 & 6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16045/2008 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF E.P.NO.764 OF 2006 IN .S.NO.374 OF 2002 DTD. 25/05/2006. EXT.P1(A): COPY OF AFFIDAVIT FILED IN E.P.NO.764 OF 2006 IN O.S.NO.374 OF 2002 DTD. 3/05/2006. EXT.P2: COPY OF E.A.NO.2470 OF 2006 IN E.P.NO.764 OF 2006 IN O.S.NO.374 OF 2002 FILED BY THE PETITIONER DTD. 26/10/2006. EXT.P3: COPY OF OBJECTION FILED BY 5TH RESPONDENT TO EXT.P2 APPLICATION DTD. 17/01/2008. EXT.P4: COPY OF THE ORDER OF THE ADDITIONAL MUNSIFF COURT, THRISSUR IN E.A.NO.2470 OF 2006 IN E.P.NO.764 OF 2006 IN O.S.NO.374 OF 2002 DTD. 26/02/2008. EXT.P5: COPY OF THE REPLY ISSUED BY THE OFFICE OF THE 5TH RESPONDENT DTD. 5/04/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss K.P.BALACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 16045 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of January, 2009 JUDGMENT The petitioner is the decree holder in OS No.374/02 on the file of the Munsiff’s Court, Kottayam. The decree in the said suit has been transferred for execution to the Munsiff’s Court, Thrissur and EP No.764/06 is pending in the transferee court. The judgment debtors are respondents 1 to 4. In execution of the decree the petitioner decree holder moved for attachment of the amounts held by the 5th respondent KSFE, that being the amount obtained by them by auction sale of the immovable property belonging to the second judgment debtor. The attachment sought for is to an extent of Rs.97,239/- only. 2. Ext.P5 letter issued by the 5th respondent to the decree holder shows that the second judgment debtor was receiving the price amount due to him under two numbers of curies subscribed by him hypothicating the property of 15 cents comprised in Survey No.3117/1 and 3117/3 of Ayiroor village in Chirayinkeezhu Taluk. But, after mortgaging the property to the 5th respondent, the second judgment debtor transferred the property to his brother, WPC : 16045/08 -:2:- K.Balachandran Nair; that when revenue recovery steps were in progress, the said Balachandran Nair filed a suit before the Varkala Munsiff’s Court and that was, however, dismissed on 20.01.05, that Balachandran Nair assailed the said dismissal filing AS No.118/05 before the Sub Court, Attingal and that only in the event of the said appeal also being disposed of in favour of the 5th respondent, KSFE, the accounts can be closed and the balance amount due determined; that the total amount for which the property was sold is Rs.9,40,100/- and that the said amount is now held in suspense account with the 5th respondent KSFE, as the 5th respondent is unable to take a decision with respect to those amounts till a decision in AS No.118/05 is rendered by the appellate court. 3. What the petitioner decree holder assails is Ext.P4 order passed by the Second Additional Munsiff, Thrissur on EA No.247/06 in EP No.764/06 in OS No.374/02 aforesaid, whereby considering the objection of the garnishee/the KSFE as well the Munsiff held that attachment cannot be effected as the amount is not given possession of to the 5th respondent garnishee but is in possession of the 6th respondent, Special Deputy Tahsildar(RR), KSFE Ltd., Statue WPC : 16045/08 -:3:- Road,Thiruvananthapuram. The said order of the court below is unsustainable in view of Ext.P5 reply furnished by KSFE to the decree holder wherein it is disclosed that the amounts are credited in suspense account maintained by the KSFE to be dealt with on disposal of AS No.118/05 on the file of the Sub Court, Attingal. However, the amount held by them is Rs.9,40,100/-. The 5th respondent has not disclosed as to what is the amount due to them and as to whether they will or there will not be any excess amount to be paid back to the second judgment debtor who has hypothicated the property to the KSFE. 4. In the result, I order that an amount of Rs.97,239/- from out of the said amount shall remain under attachment with the garnishee, the 5th respondent, and, the 5th respondent shall forward the said amount to the Munsiff Court, Thrissur to the credit of EP No.764/06 in OS No.374/02 on disposal of AS No.118/05 on the file of the Sub Court, Attingal. It is further ordered that the amount to the above extent shall not be disbursed by the 5th respondent either to the second judgment debtor or to his brother, K.Balachandran Nair without obtaining orders from the Munsiff Court, Thrissur, if at all the WPC : 16045/08 -:4:- 5th respondent is not forwarding the amount to the Munsiff Court Thrissur on disposal of the appeal aforesaid for any reason whatsoever. A copy of this judgment shall be produced by the counsel for the petitioner before the court below and the court below shall forthwith serve the above order of attachment on the 5th respondent/garnishee. This Writ Petition is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE ttb