IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17073 of 2008(G)
1. A.C.THOMAS , S/O. CHACKO, RESIDING AT
... Petitioner
Vs
1. CHACKO JOSEPH @ JOSEACHAN,S/O.CHACKO
... Respondent
2. GEORGE ALEXANDER,KUNNAPPALLINIKARTHILAYA
For Petitioner :SRI.P.S.KRISHNA PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.17073 of 2008
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Dated this the 9th June, 2008.
J U D G M E N T
Defendant in O.S.No.311/1997, on the file of the
Munsiff Court, Cherthala, is challenging Ext.P5 order passed in
I.A.No.482/2008, on 24.3.2008, where under petition filed under Rule
1 of Order VIII A of Code of Civil Procedure, to initiate third party
proceedings was rejected by the learned Munsiff. The suit was
originally decreed ex-parte and the ex-parte decree was set aside,
after condoning the delay of more than 2200 days. Petitioner had filed
a written statement on 22.7.1998, wherein he did not raise any
contention with regard to third party proceedings. After the ex-parte
decree was set aside, he got the written statement amended
incorporating the contention and thereafter filed this petition to initiate
third party proceedings.
2. The argument of the learned counsel appearing for
the petitioner is that though because of the pendency of insolvency
proceedings and for other reasons, petitioner did not raise the
W.P.(C) No.17073/2008
2
contention with regard to the third party proceedings in the original
written statement, the written statement was allowed to be amended
by paying cost, and in the light of the case in the written statement
as amended, and on the basis of the contentions of the petitioner that
the transaction with the respondent-plaintiff was at the instance of the
third party who received the amount and utilised it for his purpose,
learned Munsiff should have admitted third party proceedings. The
learned counsel also argued that dismissal of the petition as barred by
time as well as belated are not justifiable.
3. On hearing the learned counsel, I do not find any
illegality or irregularity in Ext.P5 order. The suit was instituted in the
year 1987. It was once decreed ex-parte and was set aside later on
the application filed by the petitioner after a lapse of more than 9
years. The question is whether at this stage petitioner is to be
permitted to initiate third party proceedings under Rule 1 of Order VIII
A of Code of Civil Procedure. Even if the case of the petitioner is to be
accepted and it is to be taken that transaction was at the instance of
the third party or third party utilised the funds obtained under the
transaction, petitioner can very well proceed against the third party,
subsequent to the decree. There is no justification in allowing the third
W.P.(C) No.17073/2008
3
party proceedings at this belated stage, so as to cause prejudice to the
plaintiffs to claim the amount from the third party, if otherwise entitled
to. In such circumstances, with liberty, this petition is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.