Maya.P v Krishnan Namboodiri and Vrinda Rajesh

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA,** ## **1945** ## **OP(C) NO. 1915 OF 2023** **AGAINST THE ORDER INI.A 2/2023 IN CHEQUE APPLICATION 13/2022 OF MUNSIFF COURT, THALIPARAMBA** ## **PETITIONER/PROPOSED 2ND RESPONDENT** MAYA.P,AGED 34 YEARS,W/O MUKESH, WORKING AS ADVOCATE CLERK, RESIDING AT KUNHIMANAGALAM, KARAT, EZHILOD P.O, KANNUR DISTRICT, PIN - 670309 BY ADVS. T.V.JAYAKUMAR NAMBOODIRI P.SHEENA RAJAN ## **RESPONDENTS/PETITIONER/1ST RESPONDENT:** 1 KRISHNAN NAMBOODIRI,AGED 61 YEARS S/O NARAYANAN NAMBOODIRI, AGED 61 YEARS, PEREEKKAMANA ILLAM, PINARAYI AMSOM DESOM, PINARAYI.P.O, THALASSERY TALUK, KANNUR DISTRICT, PIN - 670741 2 VRINDA RAJESH,W/O RAJESH, DIRECTOR, SIGS TECH MARKETING PVT LTD, PULIKKAL TRADE CENTRE,S.H MOUNT, P.O. NAGAMANDAPAM, KOTTAYAM DISTRICT, RESIDING AT 7/307, VAISHNAVAM, AYAMANAM MARIYATHURUTHU, P.O.KUDAMALOOR, KOTTAYAM, 686017, PIN - 686017 BY ADV PEETHAMBARAN C P THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.JAYACHANDRAN, J. ============================== O.P.(C) No. 1915 of 2023 ========================== Dated this the 30[th] day of November, 2023** ## **JUDGMENT** **The petitioner is a stranger insofar as E.P No.248 of 2018 arising from O.S No.247 of 2017 of the Munsiff Court, Thaliparamba is concerned. He is aggrieved by Ext P5 Order, which allowed a cheque application preferred by the decree holder in the said E.P in respect of the balance amount lying in the credit of the judgment debtor after satisfying the first, out of the two, decrees in favour of the decree holder. The cheque application was allowed on the premise that a second decree, which is liable to be honoured by the same judgment debtor has not been satisfied.** **2. Heard the learned counsel for the petitioner and the respondents.** **3. Learned counsel for the petitioner submits that in respect of the balance amount, which is** O.P(C) No.1915/2023 2 **lying in the credit of the judgment debtor in O.S No.247 of 2017, the petitioner had obtained an attachment in a subsequent suit O.S No.427 of 2022 before the Munsiff Court, Thaliparamba. It is the said amount, which was sought to be released in favour of the respondent herein (the decree holder in O.S No.247 of 2017) by way of Ext P5 Order, which allowed the cheque application. According to the learned counsel, an earlier cheque application preferred by the respondent herein was dismissed not pressed and the E.P was closed, wherefore without reopening the E.P, Ext P5 Order could not have been passed, allowing the cheque application.** **4. Having heard the learned counsel for the petitioner and the respondents, this Court finds little merit in the instant Original Petition. This Court notice that the 1[st] respondent herein was the winner of two decrees in O.S No.246 of 2017 and** O.P(C) No.1915/2023 3 **247 of 2017 against the 2[nd] respondent herein.** **5. In the decree which was passed in O.S No.247 of 2017, a property of the judgment debtor therein (2[nd] respondent herein) was sold for a sum of Rs.9,80,000/- as against the decree amount of Rs.6,70,000/-. Accordingly, a sum of Rs.2,92,670/was remaining in the sale proceeds, after satisfying the decree. It is true that the 1[st] respondent/decree holder filed E.A No.1 of 2021 seeking withdrawal of the balance amount in satisfaction of the second decree and the same was not pressed, with the result, the E.P was closed. However, learned counsel for the 1[st] respondent explained that the said situation arose out of a misunderstanding between the 1[st] respondent and his counsel and a complaint preferred by the 1[st] respondent against the counsel is pending consideration of the Bar Council in this regard.** O.P(C) No.1915/2023 4 **Whatever that be, it remains a fact that the 2[nd] decree in favour of the 1[st] respondent herein in O.S No.246 of 2017 was also passed on 19.12.2017, which was remaining unsatisfied. It is in the meantime that the present petitioner filed another suit against the same judgment debtor, in which he obtained an attachment before judgment in respect of the said amount outstanding in E.P No.248 of 2018, arising from O.S No.247 of 2017. The decree holder in O.S No.246 of 2017 preferred a cheque application in the said E.P, which was allowed vide Order dated 22.05.2023. The present petitioner who came to know about it preferred Ext P1 application for impleadment as an additional respondent in the E.P, which application was dismissed by Ext P5 Order, holding that the petitioner has no** _**locus standi**_ **.** O.P(C) No.1915/2023 5 **6. This Court finds no serious infirmity or illegality in respect of Ext P5 Order. The contention that without reopening the E.P, the cheque application preferred by the 1[st] respondent herein ought not have been allowed is purely technical in nature, more so when the same is espoused by a total stranger to the proceeding, only on the strength of an Order of attachment before judgment in his favour.** **6. Learned single judge of this Court in State of** _**Kerala v. Jose [2000(2) KLT 293]**_ **held that a person, who had obtained an attachment before judgment, cannot put up any claim for rateable distribution, unless he has obtained a decree and had applied for execution of the same. Of course, in the instant case, what is in question is not rateable distribution, but the petitioner/stranger is attempting to lay a claim over the outstanding** O.P(C) No.1915/2023 6 **amount, only on the strength of an attachment before judgment. Whereas, the 1[st] respondent/decree holder is a person in whose favour there is a concluded decree and the cheque application was allowed only in execution of the same.** **In the absence of any serious illegality or infirmity, this Court is not inclined to interfere with the matter under Article 227 of the Constitution, with the result, the Original Petition will stand dismissed.** **Sd/-** - **C.JAYACHANDRAN, JUDGE** vdv ## **APPENDIX OF OP(C) 1915/2023** PETITIONER EXHIBITS Exhibit -P-1 TRUE COPY OF THE AFFIDAVIT IN I.A 2/2023 IN CHEQUE APPLICATION 13/22 DATED DATED 30.05.2023 BEFORE THE MUNSIFF COURT, THALIPARAMBA Exhibit-P- 2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST RESPONDENT TO EXITS-P-1 Exhibit -P-3 TRUE COPY OF THE REVIEW PETITION I.A 3/2023 IN CHEQUE APPLICATION 13/2022 Exhibit -P-4 TRUE COPY OF I.A 4/2023 FOR STAY Exhibit-P- 5 COMMON ORDER IN I.A 2/2023 AND I.A 3/2023 IN CHEQUE APPLICATION 13/2022 PENDING BEFORE THE MUNSIFF COURT, THALIPARAMBA