IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 3810 of 2008(C) ------------------------- PETITIONER: ------------ K.V.MUHAMMADU, AGED 54 YEARS, S/O. KATHALI, MUNNAM KANDAM HOUSE, PALLICKAL, MALAPPURAM DISTRICT. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS: ------------- 1. BHARAT SANCHAR NIGAM LTD., REPRESENTED BY ITS GENERAL MANAGER, THIRUVANANTHAPURAM. 2. ACCOUNTS OFFICER, B.S.N.L., MALAPPURAM TELECOM DISTRICT. 3. DISTRICT COLLECTOR, MALAPPURAM. 4. DEPUTY TAHSILDAR (ARREAR COLLECTION), TALUK OFFICE, TIRURANGADI. 5. VILLAGE OFFICER, PALLICKAL VILLAGE, MALAPPURAM DISTRICT. BY ADV. SRI.V.R.KESAVAKAIMAL, SC, BSNL GOVERNMENT PLEADER SRI. MATHEW GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- W.P.(C).3810/2008 -------------------- Dated this the 20th day of February, 2008 JUDGMENT Petitioner challenges Ext.P1 notice of demand issued under the Revenue Recovery Act demanding an amount of Rs.6,66,474/-. Petitioner submits that on enquiry, he came to know that the Revenue Recovery proceedings had been initiated at the instance of the BSNL for recovery of alleged arrears of telephone charges. He therefore, filed Ext.P2 complaint before the General Manager and when the Revenue Recovery notice was sought to be proceeded with, he approached this Court challenging the same. 2. An additional statement had been filed by the BSNL. According to them, petitioner was running a gas agency under the name and style of “K.V.Gas Agency” with its office at XI/67, Kellur, Perunnannur, Mananthavady. Telephone No.MMY-41273 (241273), was allotted to him. Apparently, he committed default in paying the bills for the period from 1.5.1996 to 1.5.1997. It is further W.P.(C).3810/2008 2 submitted that the respondents had filed O.S.192/2001 before the Sub Court, Kozhikode, for recovery of an amount of Rs.3,04,326/- with interest. Apparently Suit was decreed as evidenced by Ext.R2(b). But the BSNL was not able to execute the decree and it is thereafter, that the proceedings under the Revenue Recovery Act have been taken. 3. I have heard the learned counsel for the petitioner Mr.T.M.Abdul Latiff and the learned Standing Counsel for the BSNL, Mr.Kesava Kaimal. 4. Mr.Latiff contends that the petitioner is not the person who was shown in Ext.R2(c) and it is a case where the BSNL has completely mistaken the identity of the person who was a subscriber to a telephone installed in a gas agency as mentioned in the statement. He contends that his name is K.V.Mohammed and as per the statement, the subscriber is one Mr.K.V.Bapputty. According to him, the contention that Bapputty and W.P.(C).3810/2008 3 Mohammed are one and the same person is misconceived. At any rate he did not subscribe to the Telephone No.MMY-41273 (241273) 5. Mr.Kaimal on the other hand, submits that Ext.R2 (a) report of the Village Officer will show that Bapputty and Mohammed are the same person. Petitioner has been evading from the execution of the decree. Enquiry has revealed that Bapputty, the defaulter, is now residing at Malappuram District in the address of K.V.Bapputty, S/o K.V.Kathali, K.V.house, Idimoozhikkal, near Spinning Mill, Chelembra P.O., Malappuram District. 6. In my view, it would not be appropriate that the notice under the Revenue Recovery Act is enforced without establishing the identity of the defaulter as such. I am constrained to take note of the fact that Ext.R2(b) is an ex parte decree. Obviously the dispute as to the identity of the defaulter was not a matter in W.P.(C).3810/2008 4 issue before the Civil Court. Petitioner herein continues to assert that he is not the person shown as defendant in the Suit and he therefore, cannot be treated as the judgment debtor also. 7. Considering the totality of the circumstances, I am of the view that it will be appropriate that the Court which executes the decree in O.S.192/2001 on the file of Sub Court, Kozhikode, presently pending in execution before the Sub Court, Sulthan Bathery, should decide this issue since the petitioner is shown as a resident of Malappuram District, it would be appropriate that the decree is now transferred back to the Court which passed the same namely the Sub court, Kozhikode. The Sub Court, Kozhikode may proceed with the execution of the decree. In doing so, the following directions shall be kept in mind. (i). Petitioner herein may make an appropriate motion/petition for execution of O.S.192/2001 before the Sub court, W.P.(C).3810/2008 5 Kozhikode, contending that he is not the judgment debtor in the Suit. He may adduce positive evidence to show that he is not the defendant/judgment debtor. It will be open to the plaintiff decree holder to adduce evidence in rebuttal. (ii). After due enquiry, Execution Court may decide the issue as to the identity of the judgment debtor, with specific reference to the question as to whether the petitioner herein is the defendant/judgment debtor in O.S.192/2001 of the Sub Court, Kozhikode. (iii). Process as outlined shall be completed within six months from the date of receipt of decree along with EP and connected records in the Sub Court, Kozhikode, from the Sub Court, Sulthan Bathery. (iv). Sub Court, Sulthan Bathery shall, on receipt of a copy of this judgment which may be produced by the BSNL, take steps to transfer the decree along with the copy of records to the Sub Court, Kozhikode. Parties will be entitled to adduce such evidence as are available to them, in support W.P.(C).3810/2008 6 of their respective contentions. Enforcement of the notice under the Revenue Recovery Act will be subject to the decision to be taken by the Execution Court. Writ petition is disposed of as above. V.GIRI, Judge mrcs