Thomas vs Hydross

Type Court Judgment Court Kerala Decided Feb 01, 2022

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https://sooperkanoon.com/case/1555097

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Citation: sooperkanoon.com/1555097
Court: Kerala High Court
Judge: Honourable Mr. Justice a. Badharudeen
Decided On: Feb 01, 2022
Case Number: OP(C)/2362/2021

Parties & Advocates

Appellant / Petitioner

Thomas

Respondent

Hydross

Excerpt

.....of money due in a suit originally filed in the year 2013.6. i have gone through the impugnedorder. going by the order, it could be noticed that the learned sub judge conducted enquiry provided under order xxi rule 40 of cpc and having appraised the fact that thejudgment debtors have landed properties to anextent of 6 acre 79 cents, 2 acre 80 cents etc. and had sufficient means to pay the decree debt. the order impugned, in detail, dealt with the contention raised by the petitioners/judgment debtors.7. however, nothing could be gathered from the order impugned to see that the finding of the court below as regards the means of the petitioners is wrong in any way. there is no harm in proceeding to release thedecree debt to the decree holders simultaneously by attachment and arrest of the judgment debtors' property/judgment debtors. it has to be noted that thepetitioners/judgment debtors even shown no respect to the order of this court to deposit rs.4 lakh as part of decree debt.in view of the matter, i could not find any merit in this original petition and, therefore, i am not inclined to interfere with the impugned order. accordingly, this original petition fails and is dismissed. the interim stay shall stand vacated. sd/- a.badharudeen, judge. ww appendix of op(c) 2362/2021 petitioners' exhibits: exhibit p1 photo copy of decree passed in os exhibit p2 photo copy of judgment passed in a.s no.13/2017 of addl dist court no.v palakkad dated 03/07/2019. exhibit p3 photo copy of decree passed in a s palakkad dated 03/07/2019. exhibit p4 photo copy of ep 69/2019 in os no.199/2013 of sub court, ottapalam. exhibit p5 photo copy of objection filed in ep court, ottapalam. exhibit p6 photo copy of affidavit and application ea 167/2021 in ep 69/2019 in os 199/2013 of sub court, ottapalam. exhibit p7 photo copy of objection.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 OP(C) NO. 2362 OF 2021 AGAINST THE ORDER IN EP 69/2019 IN OS 199/2013 OF SUB COURT, OTTAPPALAM PETITIONERS/JUDGMENT DEBTORS-DEFENDANTS 1 TO 3:
1 THOMAS, AGED 90 YEARS, S/O.OUSEPH, KIZHAKKEL VEETTIL, KANDAMANGALAM DESOM AND POST, KOTTAPPADAM NO.3 VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT - 678 583. 2 JOSE THOMAS, AGED 60 YEARS, S/O.THOMAS, KIZHAKKEL VEETTIL, KANDAMANGALAM DESOM AND POST, KOTTAPPADAM NO.3 VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT - 678 583. 3 JIBY THOMAS, AGED 55 YEARS, S/O.THOMAS, KIZHAKKEL VEETTIL, KANDAMANGALAM DESOM AND POST, KOTTOPPADAM NO.3 VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT - 678 583. BY ADV R.SREEHARI
RESPONDENTS/DECREE HOLDER/PLAINTIFF & 4TH DEFENDANT: 1 HYDROSS, AGED 67 YEARS, S/O.ULLATTUKUDIYIL MOOSAN, VENGOLAKARA, ARAKKAPADY VILLAGE AND POST, PERUMBAVOOR, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, PIN - 683 542. 2 UMMAR B.P., AGED 50 YEARS, S/O.MOITHEEN, VAZHIPPARAMBAN VEETTIL, PAYYANADAM AMSOM DESOM AND POST, MANNARKKAD TALUK, PALAKKAD DIST. - 678 583. BY ADV P.C.HARIDAS THIS OP (CIVIL) HAVING FINALLY HEARD ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Judgment Debtors 1 to 3 in E.P.No.69/2019

in O.S.No.199/2013 pending before the Sub Court, Ottapalam are the petitioners herein.

2. Ext.P13 order passed by the learned Sub Judge dated 27.11.2021 is under challenge in this Original Petition.

3. Heard both sides.

4. According to the learned counsel for the petitioners, as per Ext.P11, the property belonged to the 1st Judgment Debtor was attached and the Decree Holder can very well release the money by proceeding against the property. Despite that, simultaneous execution by issuing warrant also has been

canvassed     and    accordingly          the    learned      Sub
Judge     issued    warrant          against    the    Judgment
Debtors.    He     submitted         further    that    the   1st

Judgment Debtor is now aged 90 years and,

therefore, leniency to be shown in the matter

of arrest warrant            issued against him.
      5.   Per contra, the learned counsel for
the    Decree        Holders    would         submit      that     the
petitioners       though       having         landed     properties

in excess and sufficient money to discharge the decree debt, the petitioners are showing reluctance to pay the decree debt. He submitted further that even they failed to

deposit        Rs.4,00,000/-               directed         to      be
deposited       by    this     Court       while       staying     the
operation        of     the     order            issuing     arrest
warrant.       According       to       the     learned    counsel,
dilatory       tactics       have        been     played    by     the

petitioners to obstruct realisation of money due in a suit originally filed in the year 2013.

6. I have gone through the impugned

order. Going by the order, it could be noticed that the learned Sub Judge conducted enquiry provided under Order XXI Rule 40 of CPC and having appraised the fact that the

Judgment Debtors have landed properties to an

extent of 6 acre 79 cents, 2 acre 80 cents etc. and had sufficient means to pay the decree debt. The order impugned, in detail, dealt with the contention raised by the petitioners/Judgment Debtors.

7. However, nothing could be gathered from the order impugned to see that the finding of the court below as regards the means of the petitioners is wrong in any way. There is no harm in proceeding to release the

decree           debt       to         the         Decree          Holders
simultaneously           by      attachment           and        arrest    of
the        Judgment          Debtors'              property/Judgment
Debtors.         It     has      to        be      noted         that     the

petitioners/Judgment Debtors even shown no respect to the order of this Court to deposit Rs.4 lakh as part of decree debt.

In view of the matter, I could not find any merit in this Original Petition and, therefore, I am not inclined to interfere with the impugned order. Accordingly, this Original Petition fails and is dismissed. The interim stay shall stand vacated. Sd/- A.BADHARUDEEN, JUDGE. ww APPENDIX OF OP(C) 2362/2021 PETITIONERS' EXHIBITS: EXHIBIT P1 PHOTO COPY OF DECREE PASSED IN OS EXHIBIT P2 PHOTO COPY OF JUDGMENT PASSED IN A.S NO.13/2017 OF ADDL DIST COURT NO.V PALAKKAD DATED 03/07/2019. EXHIBIT P3 PHOTO COPY OF DECREE PASSED IN A S PALAKKAD DATED 03/07/2019. EXHIBIT P4 PHOTO COPY OF EP 69/2019 IN OS NO.199/2013 OF SUB COURT, OTTAPALAM. EXHIBIT P5 PHOTO COPY OF OBJECTION FILED IN EP COURT, OTTAPALAM. EXHIBIT P6 PHOTO COPY OF AFFIDAVIT AND APPLICATION EA 167/2021 IN EP 69/2019 IN OS 199/2013 OF SUB COURT, OTTAPALAM. EXHIBIT P7 PHOTO COPY OF OBJECTION FILED IN EA OF SUB COURT, OTTAPALAM. EXHIBIT P8 CERTIFIED COPY OF TESTIMONY OF DW1 IN EP 69/2019 IN OS 199/2013 OF SUB COURT, OTTAPPALAM. EXHIBIT P9 CERTIFIED COPY OF TESTIMONY OF DW1 IN EP 69/2019 IN O.S. 199/2013 OF SUB COURT, OTTAPPALAM. EXHIBIT P10 CERTIFIED COPY OF TESTIMONY OF DW2 IN EP 69/2019 IN O.S.199/2013 OF SUB COURT, OTTAPPALAM. EXHIBIT P11 PHOTO COPY OF PLAINT IN O.S. NO.154/2020 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD. EXHIBIT P12 CARBON COPY OF THE ORDER PASSED IN E A OF SUB COURT, OTTAPPALAM DT. 27.11.2021. EXHIBIT P13 CARBON COPY OF THE ORDER PASSED IN EP OTTAPPALAM DT.27.11.2021.

Same Court & Year Kerala · 2022 Same Parties Thomas vs Hydross Same Judge Honourable Mr. Justice a. Badharudeen