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T.R.Veerakumar vs Remani Thankachi on 2 July, 2010

Kerala High Court
T.R.Veerakumar vs Remani Thankachi on 2 July, 2010




WP(C).No. 20684 of 2010(O)

                      ...  Petitioner


                       ...       Respondent


                For Petitioner  :SRI.BENOY K.KADAVAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :02/07/2010

 O R D E R
                   THOMAS P.JOSEPH, J.
                   W.P(C) No.20684 of 2010
             Dated this the 02nd   day of July, 2010

                         J U D G M E N T

Writ Petition is filed by the claim petitioner who is the

husband of respondent No.2/judgment debtor and who lost the

claim petition and whose appeal was returned for presentation in

the proper Forum. Respondent No.1 obtained a decree for

payment of money against respondent No.2 in O.S. No.465 of

1997. When respondent No.1 launched execution against

respondent No.2 and attempted to bring the property of

respondent No.2 (which was placed under attachment) to sale,

petitioner appeared with claim petition stating that as per

settlement deed No.3257 of 2000 he got right and title over a

portion of the property attached (5 cents in extent). Executing

court found that claim is not sustainable in so far as settlement

deed in favour of petitioner is after the attachment was made and

hence it does not bind respondent No.1. Claim petition was

dismissed. Matter was taken up in appeal before the learned

District Judge. Learned District Judge observed that since the

amount involved in the suit is more than Rs.2,00,000/- appeal will

W.P(C) No.20684 of 2010
-: 2 :-

not lie before that court in view of Section 13 of the Civil Courts

Act. Accordingly memorandum of appeal was returned for

presentation before proper Forum.

2. Learned counsel submits that petitioner is not

challenging the order of learned District Judge returning the

memorandum of appeal, in this proceeding. Hence it is not

necessary for me to go into the correctness of that order in this


3. Request made by learned counsel is that petitioner

may be permitted to pay the amount due in installments to save

the property covered by settlement deed No.3257 of 2000. But

since the claim petition has been dismissed and petitioner is not a

party to the execution proceedings request of petitioner cannot

be entertained.

4. At this stage learned counsel stated that respondent

No.2, wife of petitioner is prepared to pay the amount due under

the decree, given breathing time and is prepared to deposit

Rs.1,00,000/- (Rupees One lakh only) in the executing court

within fifteen days and pay the balance amount within three

months. Learned counsel states that property is scheduled to be

sold on 05.07.2010. Since respondent No.2 has not come up with

W.P(C) No.20684 of 2010
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such a request I am unable to entertain the request made by the

petitioner. It will be open to respondent No.2 to make such a

request in the executing court and if any such request is made the

executing court will consider that request and pass appropriate

orders after hearing respondent No.1 as well, in accordance with


Writ Petition is closed with the above observation.



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