IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 OP(C).No. 398 of 2011(O) ----------------------------------- E.P. NO. 262/2007. IN OS.898/2002 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER/3RD JUDGMENT DEBTOR. --------------------------------------------------------- C.V.JOBY, S/O.LATE VARUNNI, CHEMMUNDA, SOORYA GRAMAM DESOM, EAST FORT, CHEMBUKKAV VILLAGE, THRISSUR TALUK, TRICHUR DT. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.K.R.AVINASH (KUNNATH) RESPONDENT(S): DECREE HOLDER ---------------------------------------------------- M/S.SOWMYA KURIES & LOANS (P) LTD., REPRESENTED BY ITS MANAGER, EAST FORT, THRISSUR-680 001. ADV. SRI.K.MONI (OFFICIAL LIQUIDATOR) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2011, OP(C) NO.1446 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.398/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AWARD NO.279/2005 DTD. 30.9.2005. P2:- COPY OF THE COMPROMISED PETITION. P3:- COPY OF THE ATTACHMENT OF THE SALARY OF THE PETITIONER. P4:- COPY OF THE LETTER DTD. 8.2.2010. P5:- COPY OF THE SALARY CERTIFICATE OF THE PETITIONER. P6:- COPY OF THE ORDER IN EP. 262/2007 IN OS. 898/2002 DT. 28.10.09 PASSED BY THE II ADDITIONAL SUB JUDGE, THRISSUR. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) Nos.398 & 1446 of 2011 -------------------------------------- Dated this the 17th day of August, 2011. JUDGMENT Both the Original Petitions arise from the same proceeding. In O.P.No.398 of 2011, respondent is served but there is no response. In both the cases, I have heard learned counsel for petitioners and the counsel representing the official liquidator. 2. In execution of the decrees for recovery of money the respondent, a private limited company has obtained against petitioners in these proceedings, salaries of petitioners were attached by the learned II Additional Sub Judge, Thrissur in E.P.No.262 of 2007 (in O.S.No.898 of 2002). It is submitted by learned counsel on both sides that respondent – a private limited company has been wound up, it has been taken over by the official liquidator and hence, the appropriate course open to the official liquidator is to move the company court with a claim petition against petitioners for recovery of the amount due. 3. The said fact was not brought to the notice of executing court. Hence the appropriate course is to bring the matter to the notice of the executing court and then it is for the executing court to consider the same and pass orders in E.P.No.262 of 2007 leaving it open to the official liquidator to move the company court with a claim petition against petitioners for recovery of OP(C) Nos.398 & 1446/2011 2 the amount due. Resultantly these Original Petitions are allowed. The impugned order attaching salary of petitioners is set aside and the matter is remitted to the executing court for consideration of the question whether in view of the winding up of respondent - company, execution proceeding could be continued or it is appropriate to permit the official liquidator to move application before the company court as provided under law. Parties and the official liquidator shall appear in the executing court on 19.09.2011. THOMAS P.JOSEPH, Judge. cks