IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).No. 16711 of 2010(O) -------------------------- EA NO.121/2010 IN EP NO.194/2007 IN OS.300/1989 of PRINCIPAL SUB COURT,KOTTAYAM .................... PETITIONER(S): --------------- SARAMMA MATHEW, W/O.P.K.MATHEW, AGED 52, KALEEKAT HOUSE, MULANTHURUTHY P.O. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S): --------------- 1. CENTRAL BANK OF INDIA, REPRESENTED BY BRANCH MANAGER, DEVAGIRI BRANCH. 2. P.K.SHAJIMON, S/O.MATHEW KORAH, PUTHUPPARAMBIL, AREEPPARAMBU KARA, MANARCADU VILLAGE, KOTTAYAM. 3. SOSAMMA KORAH, W/O.DO, IN DO, DO. 4. P.K.MATHEW, S/O.DO, DO. 5. P.K.JACOBKUTTY, S/O.DO, IN DO. 6. ABRAHAM P.KORAH, PUTHUPPARAMBIL, AREEPPARAMBU KARA, MANARCADU VILLAGE, KOTTAYAM. 7. MARIAMMA, W/O.ABRAHAM ANTHRAYOSE, AMBATTU HOUSE, PANGADA KARA, KOOROPADA VILLAGE. 8. ABRAHAM, S/O.DO, IN DO. WP(C0 NO.16711/2010 2 9. JOHN, S/O.DO, IN DO. 10. KURIAN, S/O.DO, RESIDING IN DO, DO. 11. VARGHESE, S/O.ABRAHAM ANTHROSE, AMBATTU HOUSE, PANGADA KARA, KOOROPADA VILLAGE. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R1 SRI.JOSEPH GEORGE FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.16711/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 DATED 20.5.2010 TRUE COPY OF ORDER IN EA NO.70/2010 IN EP 468/2001 IN OS 300/1989 ON THE FILE OF PRINCIPAL SUBORDINATE JUDGE'S COURT, KOTTAYAM EXT.P2 DATED 20.5.2010, TRUE COPY OF ORDER IN EP NO.194/2007 IN OS 300/1989 ON THE FILE OF PRINCIPAL SUBORDINATE JUDGE'S COURT, KOTTAYAM EXT.P3 DATED 20.5.2010, TRUE COPY OF ORDER INEA NO.121/2010 IN EP NO.194/2007 IN OS 300/1989 ON THE FILE OF PRINCIPAL SUBORDINATE JUDGE'S COURT, KOTTAYAM RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF JUDGMENT IN WP(C) NO.30726/2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.16711 of 2010 -------------------------------------- Dated this the 9th day of July, 2010. JUDGMENT Writ Petition is filed by the wife of one of the judgment debtors in E.P.No.194 of 2007 in O.S.No.300 of 1989 of the court of learned Principal Sub Judge, Kottayam. Objection raised by petitioner who is said to have obtained an attachment of property in O.P.No.1102 of 2009 of Family Court, Ettumanoor against her husband (one of the judgment debtors in O.S.No.300 of 1989) is that petition seeking delivery of property has been filed after one year of confirmation of sale and hence it is barred by limitation. According to the petitioner , since she has attached the property she is entitled to object to delivery of property to respondent No.1/decree holder/auction purchaser. Learned counsel for respondent No.1 contends that O.P.No.1102 of 2009 filed by petitioner is the result of collusion with judgment debtors who failed in all their attempts to block delivery of property to respondent No.1. Learned counsel states that order of delivery was challenged by judgment debtors in W.P.(C) No.30726 of 2009 which was dismissed by this Court on 02.11.2009 and it is thereafter that petitioner has filed O.P.No.1102 of 2009 in the Family Court, Ettumanoor and obtained order of attachment. 2. Even if there is an attachment to the credit of petitioner that does not create any interest in the property so that petitioner could block delivery of WP(C) No.16711/2010 2 property to respondent No.1. Attachment only creates a restraint against private alienation. Hence even if property is delivered over to respondent No.1 it is open to the petitioner to proceed with her remedy pursuant to the attachment as against the property. But she cannot, on the strength of impugned attachment resist delivery of property to respondent No.1. Learned counsel for respondent No.1 states that court auction was held on 17.10.2005 and sale was confirmed on 22.08.2006. Application for delivery of property was filed in the executing court on 30.07.2007 which means that application was filed within time. As such there is no merit in the Writ Petition and it is liable to be set aside. But I make it clear that it will be open to the petitioner to proceed with the attachment she had made even if property is delivered over to respondent No.1. Writ Petition is dismissed with the above observation. THOMAS P.JOSEPH, Judge. cks