IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 WP(C).NO. 21892 OF 2010(O) ---------------------------------------- AGAINST THE ORDER IN EP 281/07 IN OS.399/2004 OF MUNSIFF COURT, PARAVUR .................... PETITIONER(S): ----------------------- P.G.VALSALA,AGED 55 YEARS, W/O.LATE SREEBHADRAN,DJ-69,T.C.C.FLAT COLONY, ELOOR,UDYOGAMANDAL. BY ADV. SRI.K.NARAYANAN (PARUR) SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): -------------------------- M.G.VASUDEVA KURUP,S/O.M.G.GOPALA PILLAI THUNDIL HOUSE,PUTHUKKAD KARA,CHAVARA VILLAGE, KARUNAGAPPILLY TALUK,KOLLAM DISTRICT. ADV. SRI.S.SHYAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX -------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO.399 OF 2004 OF MUNSIFF'S COURT, NORTH PARAVUR DATED 17.6.2004. EXHIBIT P2 TRUE COPY OF JUDGMENT IN O.S. NO.399 OF 2004 OF MUNSIFF'S COURT, NORTH PARAVUR DATED 4.1.2007. EXHIBIT P3 TRUE COPY OF EXECUTION PETITION BEARING NO.3.P.281 OF 2007 IN O.S. NO.399 OF 2004 DATED 10.9.2007. EXHIBIT P4 TRUE COPY OF ORDER IN E.P. NO.281 OF 2007 IN O.S. NO.399 OF 2004 OF MUNSIFF'S COURT, NORTH PARAVUR DATED 4.1.2008. EXHIBIT P5 TRUE COPY OF ORDER IN I.A. NO.7 OF 2009 IN A.S. NO.4 OF 2009 DATED 17.3.2009 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR. EXHIBIT P6 TRUE COPY OF JUDGMENT IN A.S. NO.4 OF 2009 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR. EXHIBIT P7 TRUE COPY OF CHEQUE APPLICATION NO.C.A.3 OF 2010 IN E.P. NO.281 OF 2007 IN O.S. NO.399 OF 2004 MUNSIFF'S COURT, NORTH PARAVUR DATED 17.5.2010. EXHIBIT P8 TRUE COPY OF OBJECTION FILED BY PETITIONER TO EXHIBIT P7 DATED 25.5.2010. EXHIBIT P9 TRUE COPY OF CHEQUE APPLICATION BEARING NO.CA 5 OF 2010 IN E.P. NO.281 OF 2007 IN O.S. NO.399 OF 2004 MUNSIFF'S COURT, NORTH PARAVUR DATED 27.5.2010. EXHIBIT P10 TRUE COPY OF ORDER IN C.A. NO.5 OF 2010 IN E.P. NO.281 OF 2007 IN O.S. NO.399 OF 2004 MUNSIFF'S COURT, NORTH PARAVUR DATED 5.7.2010. EXHIBIT P11 TRUE COPY OF ORDER IN C.A. 3 OF 2010 IN E.P. NO.281 OF 2007 IN O.S. NO.399 OF 2004 MUNSIFF'S COURT, NORTH PARAVUR. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.21892 of 2010 ==================================== Dated this the 08th day of September, 2010 J U D G M E N T It is not disputed that for the amount due from husband of petitioner and father of defendant No.2, respondent obtained a decree against petitioner and defendant No.2 in O.S. No.399 of 2004 of the court of learned Munsiff, North Paravur. The decree allowed respondent to realise Rs.82,000/- with interest at the rate of 6% per annum on the principal sum of Rs.80,000/- from the date of suit till realisation with costs from petitioner, defendant No.2 and their assets. That judgment and decree were challenged by petitioner and defendant No.2 in A.S. No.4 of 2009. Appellate court confirmed the judgment and decree but directed that liability of petitioner and defendant No.2 will be only to the extent of property which devolved on them from their predecessor- in-interest. Respondent launched execution of the decree and attached salary of petitioner. Amount was brought into the executing court. Respondent filed Ext.P7, application for withdrawal of the amount while petitioner filed Ext.P9, application claiming that money attached belonged to her and that is not W.P(C) No.21892 of 2010 -: 2 :- liable to be attached or released to the respondent. Executing court observed that petitioner obtained the job (under dying in harness scheme) only because of death of her husband, the job secured by petitioner is the asset of her husband and hence her salary is liable to be attached. That order is under challenge in this Writ Petition. It is contended on behalf of petitioner that finding of the executing court is wholly erroneous in that executing court wrongly found that property attached belonged to the deceased husband of petitioner. Learned counsel for respondent contended that the order of attachment having not been challenged petitioner cannot resist disbursement of the amount to the respondent. 2. No doubt the order of attachment was not specifically challenged. But by the order of attachment it is only that the salary of petitioner was transmitted to the court by the disbursing officer. Question is whether respondent is entitled to get that amount. It is not disputed that consequent to the death of her husband petitioner got employment under dying in harness scheme. Executing court has taken the view that petitioner got the job only due to the death of her husband and hence the salary petitioner gets is the property of her husband. I W.P(C) No.21892 of 2010 -: 3 :- cannot assent to that view. May be it is on account of the death of husband of petitioner that she got the job under the dying in harness scheme. But that is not an asset of the husband which passed on to the petitioner on his death. She got employment under a scheme framed by the Government on compassionate ground to help members of family of the deceased employee. That such employment has been given consequent to the death of employee while in service does not make the employment or salary given to the person employed in that scheme, property of deceased employee. Petitioner was given salary for the work she has done. It is her property. Under section 50(2) of the Code Civil Procedure (for short, “the Code”) when a decree is being executed against a legal representative such legal representative shall be liable only to the extent of property of the deceased which has come to his hands. It is true that the decree itself was obtained against petitioner and defendant No.2 and though the trial court decreed that respondent is entitled to recover the amount from petitioner, defendant No.2 and their assets that mistake has been remedied by the appellate court in tune with Sec.50(2) of the Code directing that petitioner and defendant No.2 will be liable only to the extent of property of the deceased W.P(C) No.21892 of 2010 -: 4 :- in their hands. I stated that salary which has been attached is not the property of deceased husband of petitioner. View taken by the executing that salary was obtained by petitioner from a job consequent to the death of her husband and hence salary belonged to the husband is erroneous and cannot be accepted. 3. Then the next question is whether for the mere reason of the order of attachment being not under challenge grievance of petitioner against Ext.P10, order could be sustained. Attachment only directed the disbursing officer to deposit into the court amount attached. Respondent sought for disbursement of that amount which is objected by petitioner and she has made a counter claim vide Ext.P9, to release the amount to her. At that stage executing court was bound to (and in fact has also) decide rights of parties. Hence the mere fact that order of attachment itself was not challenged does not prevent petitioner from objecting to disbursement of the amount to the respondent or claiming the amount for herself. Having heard counsel on both sides I am inclined to hold that petitioner is entitled to succeed in this Writ Petition. Resultantly, this Writ Petition is allowed in the following lines: W.P(C) No.21892 of 2010 -: 5 :- (i) Exhibit P10, order is set aside and Ext.P9, application filed by the petitioner is allowed. (ii) Exhibit P7, application preferred by the respondent will stand dismissed. (iii) Executing court is directed to release the amount attached to the petitioner. THOMAS P. JOSEPH, JUDGE. vsv