IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21304 of 2010(O)
1. STATE OF KERALA,.REP.BY THE SECRETARY
... Petitioner
2. THE SUPERINTENDING ENGINEER,
3. THE EXECUTIVE ENGINEER, MINOR IRRIGATION
Vs
1. BASIL YELDHOSE, S/O.LATE YELDO PAULOSE,
... Respondent
2. BINSON YELDHOSE, S/O.LATE YELDO PAULOSE
3. RAHEL PAULOSE, W/O.LATE K.P.PAULOSE,
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.K.BABU THOMAS
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/11/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.21304 of 2010
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Dated this the 8th day of November, 2010.
JUDGMENT
Ext.P5, order passed by the learned Principal Sub Judge, Ernakulam is
under challenge in this petition at the instance of judgment debtors. Predecessor
in interest of respondents had a work contract with petitioners and for the amount
due, he filed the suit (O.S.No.10 of 1993). There was a preliminary decree
followed by a final judgment and decree awarding certain amount to the
contractor. He filed E.P.No.314 of 2000. It is not disputed that in the meantime,
petitioners had deposited a sum of Rs.8,51,430/-. While so, the original decree
holder died and E.P.No.314 of 2000 was closed on 16.10.2006. Thereafter the
legal heirs of deceased original decree holder filed E.P.No.452 of 2009 and
since petitioners did not deposit the amount executing court passed Ext.P5,
order dated 08.04.2010 attaching the sales tax amount in the custody of
Chairman and Managing Director, Cochin Refineries Ltd., Administrative Office,
Kundannur, Maradu P.O., Thripunithura, Ernakulam. That order is under
challenge at the instance of judgment debtors. Learned Government Pleader
submits that attachment under Rule 46A of Order XXI of the Code of Civil
Procedure (for short, “the Code”) is illegal since there was no debt due to
judgment debtors in the custody of Chairman and Managing Director (referred
supra) which was sought to be attached under Rule 46A of Order XXI of the
Code. It is submitted that the amount deposited by petitioners was not taken into
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account by the executing court. A further objection raised is that in view of
Section 49A of the Kerala General Sales Tax Act, 1963 and Section 79 of the
Kerala Value Added Tax Act, 2003 as amended by the Kerala Finance Act, 2005
no attachment could have been ordered against petitioners.
2. Now as per Ext.P5, order the amount attached is in the custody of
Chairman and Managing Director of Cochin Refineries Ltd. It is seen from
Ext.P5, order that attachment was made under Rule 46A of Order XXI of the
Code. Under that Rule, when the amount is attached, garnishee can either
deposit the amount or, appear and show cause why he shall not deposit the
amount. When that remedy is available to the garnishee I do not find reason to
entertain this petition filed by petitioners/judgment debtors. It is for the garnishee
concerned if he is aggrieved by Ext.P5, order to challenge that order in
appropriate proceedings. Hence I am not inclined to entertain this petition.
3. It is seen from Ext.P5, order that substantial amounts are due to
the respondents. Learned counsel for respondents says that after death of the
original decree holder respondents who are legal heirs are in difficult situation
and are facing financial crisis. That certainly is a matter which
petitioners/judgment debtors have to take into account rather than raising
technical contentions and delaying payment of the amount due. But I am
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inclined to grant petitioners three months time from this day to deposit the
entire balance amount due as per final judgment and decree in the executing
court. Until then the garnishee need not deposit the amount as ordered in
Ext.P5, order in the court below.
Resultantly this petition is dismissed without prejudice to the right of
garnishee to challenge Ext.P5, order or to show cause why he shall not deposit
the amount in executing court. However it is directed that the garnishee need
deposit the amount in the court below (in case he is not showing cause in the
executing court or otherwise not challenging Ext.P5, order) only in case
petitioners/judgment debtors do not deposit the entire amount due under the
final judgment and decree within the said period of three months from this day.
THOMAS P.JOSEPH,
Judge.
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