IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).No. 17041 of 2010(O) -------------------------- OS.100/2010 of SUB COURT,KOCHI .................... PETITIONER(S): THIRD PARTY (CLAIM PETITIONER) --------------------------------------------- 1. AMAR KAMESH A., S/O.ABDUL RAHMAN KOYA, PROPRIETOR A ONE CASHEW TRADERS, RESIDING AT HYDROSE BUILDING, SANGAMAM NAGAR-93, PALLITHOTTAM P.O., KOLLAM-6. 2. RAJAN ABRAHAM, S/O.ABRAHAM, PROPRIETOR FRIENDS CASHEWS, RESIDING AT VISWAS, NEDUMPANA P.O., KOLLAM. BY ADV. SRI.C.S.AJITH PRAKASH SRI.T.D.SALIM SRI.PAUL C THOMAS RESPONDENT(S): PLAINTIFF/DEFENDANTS NO.3 ---------------------------------------- 1. MUJEEB CASHEW INDUSTRIES, REPRESENTED BY ITS PROPRIETOR, S.MUJEEB RAHMAN, AGED 40 YEARS, S/O.SHAIK FAREED, KALLUMTHAZHAM, KILIKOLLOOR, KOLLAM. 2. BOARD OF TRUSTEES OF THE COCHIN PORT TRUST, REPRESENTED BY ITS CHAIRMAN, WILLINGTON ISLAND, KOCHI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.17041 of 2010 -------------------------------------- Dated this the 4th day of June, 2010. JUDGMENT Writ Petitioners seek a writ of mandamus or any other appropriate direction to the learned Sub Judge, Kochi to hear and dispose of the claim petition, I.A.No.805 of 2010 without insisting on service of notice or appearance of the defendant concerned. 2. Respondent No.1 filed the suit for recovery of money against defendants and the property (raw cashew nuts) allegedly belonging to defendants was attached as per order dated 19.05.2010 in I.A.No.751 of 2010. Petitioners claiming that they had purchased the property attached from defendant No.1 preferred a claim petition in the court below under Order XXI Rule 58 of the Code of Civil Procedure (for short, “the Act”). Grievance of petitioners is that in spite of petitioners producing the bill of lading and other documents which would reveal that attached articles are purchased from defendant No.1 learned Sub Judge is insisting that notice to the defendant concerned is necessary before claim petition is disposed of. Hence this Writ Petition with the prayers stated above. Learned counsel for petitioners has placed reliance on the decisions in George Antony v. Kerala Financial Corporation (1090 [1] KLT 486) and Woody' Hotel Pvt. Ltd. v. Prasant Kumar Panigraphy (1998 [1] KLT 149) to buttress his WP(C) No.17041/2010 2 contention that claim petition is like a suit between petitioners and attaching plaintiff-decree holder. But the decisions cited by learned counsel do not say either that the defendant concerned is not a necessary party to the claim petition or that claim petition can be decided without reference to the defendant whose property is supposed to be attached. As such I am not inclined to give direction to the learned Judge to dispose of the claim petition without reference to the defendant concerned. 3. It is pointed out by learned counsel that the article attached is perishable in nature (raw cashew nuts) kept in container and every day petitioners are incurring loss by way of demorrage. The article is also likely to perish. According to the learned counsel petitioners are prepared to furnish security for the plaint claim and the articles may be released to the petitioners. 4. There are provisions in the Code (See Order XX1 Rule 43) which deals with attachment of articles which are perishable in nature. Rule 309 of the Civil Rules of Practice also provides for that. It is open to the petitioners to request learned Sub Judge to pass appropriate orders if the article attached is perishable in nature and that on account of the article being attached petitioners are suffering loss every day or, if removal to a safe place and to be left in proper custody subject to appropriate terms and conditions is necessary. 5. At this stage learned counsel requested that learned Sub Judge may be directed to consider the matter on 05.06.2010 itself. I think no such direction can be issued to the learned Sub Judge for consideration of the matter tomorrow itself. But I direct the learned Sub Judge to consider the request, if WP(C) No.17041/2010 3 any made by the petitioners at the earliest considering the circumstances stated by the petitioners and in the light of the documents produced by them as well as their case that they are prepared to furnish security for the plaint claim. If any such request is made, learned Sub Judge shall consider and dispose of the same as expeditiously as possible. Writ Petition is disposed of with the above direction. THOMAS P.JOSEPH, Judge. cks