IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 WP(C).No. 32559 of 2008(A) -------------------------------------------- IN E.P.106/ 2002 IN OS.115/1997 of ADDL.SUB COURT, KOCHI .................... PETITIONER: BASIL OOMMEN GEORGE, THUNGUMVILA PUTHEN VEEDU, CHANNAPETTA VILLAGE, PATHANAPURAM TALUK, CHANNAPETTA MURI, KOLLAM DIST. BY ADV. SMT.K.V.BHADRA KUMARI SMT.T.C.MARYKUTTY RESPONDENTS: 1. MARY JOSEPH LEWIS, W/O.LATE JOSEPH LEWIS, CC.NO.X/1478, AMARAVATHY, FORT KOCHI, KOCHI-1. 2. HELEN FIGERADO, D/O.LATE JOSEPH LEWIS, DO. DO. 3. ALBERT LEWIS, S/O.LATE JOSEPH LEWIS, C.C.NO.1/1828, PUTHUKAD HOUSE, CHITTAPALAM, KOCHI-1. 4. CHARLOTTE PAIVA, D/O.LATE JOSEPH LEWIS, AZHIKKADATH HOUSE, T&R CROSS ROAD, THOPPUMPADY. 5. RUBEN LEWIS, S/O.LATE JOSEPH LEWIS, CC.NO.X/369, FERNADEZ GARDEN, EDAPADAM, VARAPPUZHA, KOCH-683 517. 6. DORRIZ D'SILVA, D/O.LATE JOSEPH LEWIS, C.C.NO.27/1966, ALINGAPADAM, VADUTHALA, KOCHI-23. 7. FRANCIS LEWS, S/O.LATE JOSEPH LEWIS, FERNANDEZ GARDEN, KARUMALUR P.O.,MANAKKAPADI. 8. JUDESON CHRISTOPHE LEWIS, S/O.LATE JOSEPH LEWIS, C.C.NO.X/1478, AMARAVATHY, FORT KOCHI, KOCHI-1. 9. M/S.PHILPS TA, 24/1630, SIC COMPOUND, WELLINGTON ISLAND, COCHIN-3. 10. JOSEPH PHILIP (DIED), S/O.K.PHILIP, PROPRIETOR, M/S.PHILIPS TEA, 10/60, PHILIPS VILLA, FORT KOCHI-1. 11. MRS.LALITHA JOSEPH, AGED 30 YEARS, W/O.JOSEPH PHILIP, RESIDING AT 10/60, PHILIPS VILLA, FORT KOCHI-1, PRESENT ADDRESS: THENGUVILLA PUTHEN VEEDU, CHANNAPETTA VILLAGE, PATHANAPURAM TALUK,KOLLAM DISTRICT. 12. THANKAMMA PHILIP, W/O.LATE K.PHILIP, 10/60, PHILIPS VILLA, FORTKOCHI. 13. ROY PHILIP, AGED 54, S/O.K.PHILIP, DO. DO. 14. JOLLY ABRAHAM, AGED 50, D/O DO. DO. DO. 15. MATHEW PHILIP, AGED 50, S/O DO. DO. DO. 16. JOHN PHILIP, AGED 46, S/O DO. DO. DO. 17. JESSY PHILIP, AGED 40, D/O DO. DO. DO. 18. ABRHAM PHILIP, AGED 39, S/O DO. DO. DO. 19. MOLLY MATHEW, W/O.MATHEW PHILIP, 14/1853, CHULLIKKAL, KOCHI-5. 20. SENJU MATHEW, S/O.MATHEW PHILIP, DO. DO. 21. SUNIL MATHEW, W/O.MATHEW PHILIP, DO. DO. 22. SONA MATHEW, D/O.MATHEW PHILIP, DO. DO. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.32559 of 2008 A -------------------------- JUDGMENT Heard counsel for the petitioner. 2. Petitioner is the assignee decree holder of the decree in O.S.No.115/97 on the file of the Sub court, Kochi. In the execution proceedings in E.P. No.106/02 in O.S.No.115/97, when the decree schedule property, which was a charge for the decree debt, was brought to auction sale, respondents 1 to 8 herein, who are the legal representatives of Joseph Lewis, the second party to a “panayakkarar” executed by him with the third judgment debtor on 6.8.1997, advanced a claim to the decree schedule property by filing E.A.No. 143/04. The said claim petition was dismissed for default and E.A.No.263/07 was filed for restoration of the said claim petition. On enquiry, the Sub Judge has reported to the Registry that service is not complete in E.A.No.263/07, as respondents 4 and 8 to 12 therein are not served. All the same, it is WPC 32559/08 2 worthy to note that a suit O.S.No.117/03 had been filed by the claim petitioners, on the basis of the “panayakkarar” and vide Exhibit P3 judgment in A.S. No.280/04 on the file of the I Additional District Court, Ernakulam, the said appeal was allowed and the suit O.S.No.117/03 was dismissed. Inasmuch as O.S.No.117/03 is a suit instituted earlier to filing of the claim petition, the decision in that suit is decisive by reason of Rule 104 of Order XXI CPC and the claim petitioners are to seek their remedies against the judgment debtors, who executed the “panayakkarar” in their favour on 6.8.1997 as the charge over the decree schedule properties in favour of the decree holder was created earlier thereto and was the subject matter of O.S.No. 115/97 and the decree holder gets a prior charge over the properties. Hence, irrespective of pendency of the restoration application, the decree holder shall be entitled to proceed with the execution as against the judgment debtors, against WPC 32559/08 3 whom the decree had been passed. Rights if any of the claim petitioners are to be fought out against the concerned judgment debtor (and his legal representatives on his death), who has executed the “panayakkarar” on 6.8.1997, after having created charge over the scheduled properties in favour of the original decree holder for availing loan. With this direction, I dispose of this writ petition. In the nature in which I have disposed of this writ petition, no direction requires to be issued directing the Sub Judge, Kochi to dispose of E.A.No.263/07. All the same, the Sub Judge, Kochi shall dispose of E.P.No.106/02 in O.S.No.115/97 as expeditiously as possible. 25th November, 2008 (K.P.Balachandran, Judge) tkv