DAISY RAJAN Vs. K. DEVARAJAN BUSINESS AND OTHERS

JUDGEMENT

(1.) The petitioner is the decree holder in a money suit filed on 21.07.2014 as O.S. No. 11/2014 on the file of the Sub Court, Chengannur, wherein he obtained an exparte decree for realisation of Rs. 52,50,000/- on 07.12.2015 as per Ext.P1 judgment. He had filed suit originally before the Sub Court Mavelikkara, and it was transferred to Chengannur. He had obtained an attachment before Judgment under Order 38, Rule 5 C.P.C, as mentioned in Ext.P2 affidavit filed along with E.A. 11/2017 in E.P. No. 29/2016 pending before the Sub Court Chengannur. It is submitted that the 3rd respondent herein filed O.S. No. 142/2015 before the Munsiff's Court, Harippad on 10.04.2015 against the 1st respondent, who is the husband of the 2nd respondent, for realisation of Rs. 11,23,163/- and obtained an exparte decree on 29.02.2016 from the Munsiff's Court, Harippad. E.P. No. 50/2016 is filed before the Munsiff's Court, Harippad and it is submitted that the very same property, which was attached before judgment in petitioner's suit O.S. No. 11/2014, is being attached in E.P. No. 50/2016 and posted for sale on 25.07.2017. This Court, on filing this petition, had stayed further proceedings.

(2.) The learned Counsel for the petitioner submits that by Article 227 of the Constitution read with Rule 24, C.P.C. enables this Court to protect the petitioner, who had obtained an attachment of the property, first in point of time for a larger amount, which is also now sought to be attached for realisation of a lesser amount by another party against the judgment debtor. It is also submitted by the learned Counsel that O.S. No. 142/2015 is a collusive suit filed by one of the parties against the judgment debtor in order to defeat the petitioner from realising his larger amount from the property, which was attached during the pendency of the suit. In case the property is sold in E.P. No. 50/2016, there would be nothing remaining for the petitioner to realise his decree debt from the already attached property. The learned Counsel relies on two decisions in support of his argument, reported in Dhanu Joby @ Dhanu Shaji v. Joby Cheriyan, 2016 (1) KHC 678 and Silver Granites v. Murugan, 1995 KHC 2108. In the decisions, it was held that the supervisory powers of the High Court under Article 227 of the Constitution enables the Court to streamline the process of dispensation of justice, which guarantees uniformity in action and an assurance to the litigants, of being treated alike. The petitioner wants a stay of the proceedings in E.P. No. 50/2016 till E.P. No. 29/2016 before the Sub Court, Chengannur is disposed of and the decretal debt is realised from the property. She also wants that proceedings for sale in E.P. No. 29/2016 be taken as expeditiously as possible. It is also prayed that E.P. No. 50/2016 pending before the Munsiff's Court, Harippad may be transferred to Sub Court, Chengannur to be disposed of together with E.P. No. 29/2016, so that there will not be any injustice meted out regarding the realisation of the debt from the same property, which is attached in both the Execution Petitions. Considering the facts and circumstances of this case, I find that there is justification in the demand put forth by the petitioner to get the Execution Petitions disposed by the Sub Court Chengannur. Though the respondents were served, and Vakalath filed for them, there is no representation for the respondents. The Original Petition is allowed and E.P. No. 50/2016 in O.S. No. 142/2015 pending before the Munsiff's Court, Harippad is directed to be transferred to Sub Court, Chengannur for disposal along with E.P. No. 29/2016 in O.S. No. 11/2014 filed by the petitioner. The Sub Judge, Chengannur is directed to dispose of both the Execution Petitions as expeditiously as possible, at any rate, within five months from the date of receipt of this judgment. No order as to costs.