IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 25396 of 2006(W)
1. JOSEPH S/O.DEVASSIA,
... Petitioner
Vs
1. THE DISTRICT CO-OPERATIVE BANK KOTTAYAM,
... Respondent
2. THE ASSISTANT REGISTRAR OF
3. LILLYKUTTY JOSE, D/O.JOSEPH,
For Petitioner :SRI.GEORGEKUTTY MATHEW
For Respondent :SRI.T.R.RAMACHANDRAN NAIR, SC, DCB, KTM
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :15/11/2006
O R D E R
M.SASIDHARAN NAMBIAR, J.
------------------------------------------
W.P.C.NO.25396 OF 2006 (W)
-----------------------------------------
Dated this the 15 th day of November, 2006.
JUDGMENT
Petitioner is the plaintiff in O.S.13/06 on the file of Munsiff Court,
Erattupetta. Respondents are the defendants. As per order dated 11.08.06,
court below directed petitioner to value the plaint on one half of the money
sought to be recovered by the first respondent and pay court fee accordingly.
It is challenged in this petition filed under Article 227 of Constitution of India.
2. Learned counsel appearing for the petitioner and first
respondent were heard.
3. Ext.P1 plaint shows that the relief sought for by the petitioner is
a decree for permanent prohibitory injunction restraining respondent from
proceeding against plaint schedule property or the movable property in the
house in the plaint schedule property. Case of the petitioner is that third
defendant, his wife had availed loan from first respondent and first
respondent is proceeding to recover the loan amount due from the petitioner
against the plaint schedule property, house and movables there in. A decree
for permanent prohibitory injunction restraining respondents 1 and 2 from
proceedings against immovable property as well as movable property was
W.P.C.NO.25396 OF 2006 (W)
2
sought. As per Ext.P3 order, Munsiff held that by a decree of injunction,
petitioner is seeking a decree restraining respondents 1 and 2 from realising
the amount and therefore as held by this court in Manmathankutty v. State
of Kerala (1997 (1) KLT 317) and Kunharamu v. Kunhalankutty (2003 (1)
KLT 216) , suit is to be valued on one half of the money sought to be
recovered and court fee has to be paid accordingly. It is challenged in this
petition filed under Article 227 of Constitution of India.
3. Learned counsel appearing for petitioner vehemently argued that
third defendant wife, is residing with her parents as her relationship with
petitioner got strained and plaint schedule property exclusively belong to
petitioner and therefore respondent 1 and 2 are not entitled to proceed
against the exclusive property of petitioner as he is not a debtor and he is
not liable to repay the loan or the amount due by third respondent and
therefore Ext.P2 order is unsustainable. Learned counsel appearing for
respondent 1 and 2 pointed out that in view of the decision of this court
relied on by the court below, invoking the extra ordinary jurisdiction under
Article 227 of Constitution of India, the order cannot be interfered.
4. Relief sought for is a decree restraining respondent 1 and 2 from
proceeding against the plaint schedule property and house in the plaint
schedule property as well as movables there in. The house is the
W.P.C.NO.25396 OF 2006 (W)
3
matrimonial house of third defendant, judgment debtor, a decree for
injunction is sought is, restraining respondents 1 and 2 from realising
the amount due from the third respondent by proceeding even against the
movables in the house. In such circumstances the finding of the court below
that by the decree, petitioner is seeking to restrain respondents 1 and 2
from realising the amount due from third respondent and therefore suit is to
be valued at one half of the market value and court fee has to be paid
accordingly cannot be said to be an unlawful or illegal order. Exercising the
supervisory jurisdiction under Article 227 of Constitution of India,
interference is warranted. Argument of petitioner is that as provided under
proviso to section 27(C) of the Act, petitioner is not a debtor, he need not
pay court fee on the total amount due from the third respondent. That
exactly, is the question considered by a Single Judge of this court in
Kunharamu v. Kunhalankutty (2003 (1) KLT 216). There also the amount
was not due from the petitioner but from a third party. This court held that
petitioner is liable to value the suit at one half of the amount, sought to be
recovered, even though he is not a debtor. In such circumstances I find no
reason to interfere with Ext.P3 order. Petition is dismissed accordingly.
M.SASIDHARAN NAMBIAR,
JUDGE.
bkn