IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 OP(C).No. 32 of 2010(O) ---------------------------------- EP.NO.107/2007 IN OS.411/2005 of MUNSIFF COURT, CHENGANNUR .................... PETITIONER/JUDGMENT DEBTOR ------------------------------------------------ V. SASIDHARAN, AGED 51 YEARS, S/O.KUTTY, VELIAYAKULATHUMPATTIL HOUSE, THITTAMEL MURI, CHENGANNUR. P.O. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL, SMT.ASHA ELIZABETH MATHEW. RESPONDENT/DECREE HOLDER ------------------------------------------------- SALI THOMAS, MURIKKUM MOOTTIL, THITTAMEL MURI, CHENGANNUR. P.O., PROPRIETOR, UNIVERSAL FINANCIERS, CHENGANNUR, THITTAMEL MURI, CHENGANNUR. P.O., PIN-690 502. BY ADV. SRI.P.HARIDAS, SMT.S.SIKKY. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 32 of 2010(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER FROM THE KERALA AGRICULTURAL LABORERS WELFARE FUND SCHEME 1990. EXT.P2: COPY OF THE PASS BOOK ISSUED TO THE PETITIONER FROM THE KERALA AGRICULTURAL WELFARE FUND SCHEME 1990. EXT.P3: COPY OF THE PETITION FILED TO ATTACH THE PETITIONER'S RESIDENTIAL PROPERTY. EXT.P4: COPY OF THE ATTACHMENT SCHEDULE FILED BY THE PETITIONER. EXT.P5: COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE EXECUTION COURT ON 16/09/2009. EXT.P6: COPY OF THE OBJECTION DATED 19/10/2009 FILED BY THE PETITIONER BEFORE THE EXECUTION COURT. EXT.P7: COPY OF THE ORDER DATED 04/11/2009 OF THE EXECUTION COURT IN I.A.114/2009. EXT.P8: COPY OF THE OBJECTION FILED BY THE PETITIONER TO E.A.83/2008. EXT.P9: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ON 17/05/2010 ALONG WITH EXHIBIT P8 OBJECTION. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.32 of 2010 -------------------------------------- Dated this the 23rd day of August, 2011. JUDGMENT Petitioner is the judgment debtor in E.P.No.107 of 2007 in O.S.No.411 of 2005 of the court of learned Munsiff, Chengannur. In execution of a money decree obtained by the respondent he proceeded against property of petitioner and attached it in execution. Petitioner preferred Ext.P6, objection and Ext.P5, application to lift the attachment on the ground that the property is exempted from attachment under Section 60(c) of the Code of Civil Procedure (for short, “the Code”) reason being that he is an agricultural labourer and that he has no other house except the 2.02 Ares and house attached. Executing court rejected the contention vide Ext.P7, order. Later petitioner filed Ext.P8, objection to the attachment and Ext.P9, application to accept the objection. That, I am told is not disposed of so far. 2. Now the challenge in this proceeding is to Ext.P7, order. It is pointed out by learned counsel for respondent that the said order is appealable as a decree in view of Rule 58(4) of Order XXI of the Code. In response learned counsel for petitioner contends that this Original Petition was filed on 22.09.2010 and as the matter has been pending in this Court since then, it is open to the court to exercise power under Article 227 of the Constitution. Reliance is placed on the decision in Prabhakaran v. Sajini and others OP(C) No.32/2010 2 (2010 (1) KHC 146). 3. In that case a preliminary objection was raised as to the sustainability of a writ petition under Article 227 of the Constitution. This Court held that where there is glaring jurisdictional infirmity in the order of the subordinate court which is challenged by way of a writ petition invoking the supervisory jurisdiction of the court and in the circumstance nothing prevented this Court even when there is availability of another efficacious remedy by way of an appeal, to examine correctness and propriety of the order under challenge. 4. No doubt, in appropriate cases even when an appellate remedy is available it is open to this Court to exercise supervisory jurisdiction under Article 227 of the Constitution. But that must depend on the factual situation in the case. It is not as if in every case where appellate remedy is available, the party could afford to file a petition under Article 227 of the Constitution. The mere fact that the Writ Petition was filed on 22.09.2010 (I do not find any order admitting this Writ Petition) is not a ground to sustain the Writ Petition if a remedy by ay of appeal is available. The objection raised by petitioner was adjudicated by Ext.P7,order which is amenable to an appeal as that order has force of a decree in view of Rule 58 of Order XXI of the Code. Learned counsel for respondent is right in his contention that the order under challenge is subject to an appeal. In that view of the matter I do not find reason to entertain this Original Petition. Petitioner has to seek appropriate remedy by way of appeal if so advised. OP(C) No.32/2010 3 Without prejudice to the petitioner exercising right of appeal as available to him, this Original Petition is closed. However to facilitate filing of the appeal if any it is directed that the interim order passed by this Court will remain in force for a period of one month from this day or till the appellate court passes appropriate orders as the case may be, whichever is earlier. THOMAS P.JOSEPH, Judge. cks