IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 19153 of 2010(O) -------------------------- AGAINST THE ORDER IN EP.38/1999 IN OS.474/1990 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- 1. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, SUB STATION SUB DIVISION, SHORNUR. 2. THE ASSISTANT ENGINEER, KSEB, K.V.SUB STATION, KOOTTANAD. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENT(S): --------------- 1. M/S.ERNAKULAM FINANCIERS AND KURIES(P) LTD.,T.D.ROAD, ERNAKULAM, COCHIN-35,REPRESENTED BY ITS MANAGING DIRECTOR MATHEW KURIAN, RESIDING AT KIZHAKKODAN HOUSE,CHANDRATHIL ROAD, EDAPPALLY, KOCHI-24. 2. P.K.SUBRAMANYAN,S/O.KRISHNAN, RESIDING AT POTTAYIL HOUSE, MAPRANAM DESOM, MADAYIKONAM VILLAGE, MAPRANAM TALUK, 680121. 3. K.S.KUMARAN,S/O.SANKARAN, RESIDING AT KUTTIKKATTIL HOUSE ,NADAVARAMBU DESOM, MANAVILLASSERI VILLAGE, IRINJALAKUDA TALUK 680121. ADV. SRI.M.V.JOHN FOR R1 SRI.RENJU JOHN FOR R1 SRI.B.JAYAPARAKASH FOR R1 SMT.SUJA R. NAIR FOR R1 SMT.DHANYA P.ASHOKAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.19153/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 A TRUE OPY OF ORDER DATED 15.5.2001 IN EP NO.38/1999 IN OS 474/1990 OF THE SUB COURT, ERNAKULAM EXT.P2 A TRUE COPY OF THE LETTER DATED 29.11.2001 SUBMITTED BY THE ASST. EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KECHERY, MANDOOR BEFORE THE SUB COURT, ERNAKULAM EXT.P3 A TRUE COPY OF THE STATEMENT DATED 9.6.2010 OF THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KUNNAMKULAM SHOWING THE DETAILS OF THE AMOUNTS RECOVERED FROM THE SALARY OF 2ND RESPONDENT AD REMITTANCE OF THE SAID AMOUNTS IN THE SUB COURT, ERNAKULAM BY CHEQUES EXT.P4 A TRUE COPY OF THE CERTIFIED COPY OF THE ORDER DATED 22.2.2010 IN EP NO.38/1999 IN OS 474/90 OF SUB COURT, ERNAKULAM. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.19153 of 2010 -------------------------------------- Dated this the 22nd day of November, 2010. JUDGMENT This petition is filed in challenge of Ext.P4, order dated February 22, 2010 in E.P.No.38 of 1999 in O.S.No.474 of 1990 of the court of learned Principal Sub Judge, Ernakulam. On alleged failure of petitioners to deposit in court salary of respondent Nos.2 and 3/judgment debtors attached in execution of the decree in favour of respondent No.1, court below passed Ext.P4, order under Order XXI Rule 46-B of the Code of Civil Procedure (for short, “the Code”). That order is under challenge. 2. When the matter came up for hearing it is pointed out by learned counsel for respondent No.1 that the impugned order having been passed under Rule 46-B of Order XXI of the Code and since the petitioners have failed to comply with order of the executing court to deposit in court salary of respondent Nos.2 and 3/ judgment debtors, petitioners are liable to be proceeded against as if there was a decree against them, it is pursuant to the said provision that the impugned order was passed and that the said order is appealable under Rule 46-H of Order XXI of the Code and hence this petition cannot be entertained. I have heard learned counsel for petitioners also in that regard. Learned counsel WP(C) No.19153/2010 2 submitted that if that view is accepted petitioners may be given opportunity to file appeal against the impugned order and in the meantime operation of the impugned order may be kept in abeyance. 3. I have gone through the order under challenge. It is not disputed that it falls under Rule 46-B of Order XXI of the Code in which case remedy of petitioners is to prefer an appeal under Rule 46-H of Order XXI of the Code. When a statutory remedy by way of appeal is available there is no reason why this Court should interfere under Article 227 of the Constitution. Hence I leave petitioners to the remedy available under the Code. 4. So far as request for stay of operation of the impugned order is concerned, having regard to the circumstances stated by learned counsel I am inclined to grant stay of operation of the impugned order against petitioners personally for a period of fortyfive (45) days from this day on condition that respondent Nos.2 and 3/ judgment debtors deposited the amount due under the decree in the executing court within one month from this day. Resultantly this petition is dismissed without prejudice to the right of petitioners to challenge the impugned order by way of appeal as provided under law. It is made clear that in case any such appeal is preferred, petitioners can request for exclusion/condonation of the period during which this petition was WP(C) No.19153/2010 3 pending in this Court while computing the period of limitation for such appeal. Execution of the impugned order against the petitioners personally will stand in abeyance for a period of fortyfive (45) days from this day on condition that respondent Nos.2 and 3/judgment debtors deposited the entire amount due under the decree in the executing court within one month from this day. THOMAS P.JOSEPH, Judge. cks