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MICHEL LOUIS, S/O. PAUL LOUIS versus K. AMBIKA, AGE NOT KNOWN

High Court of Kerala

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MICHEL LOUIS, S/O. PAUL LOUIS v. K. AMBIKA, AGE NOT KNOWN - WP(C) No. 25829 of 2005(Y) [2007] RD-KL 11473 (28 June 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 25829 of 2005(Y)

1. MICHEL LOUIS, S/O. PAUL LOUIS,
... Petitioner

Vs

1. K. AMBIKA, AGE NOT KNOWN,
... Respondent

2. DHANYA, D/O. LATE S.K. SIVADASAN PILLAI

3. DHANISH, S/O. LATE S.K. SIVADASAN PILLAI

4. THE TATA OIL MILLS WORKERS UNION,

For Petitioner :SRI.ASOK M.CHERIAN

For Respondent :SRI.BIJI MATHEW

The Hon'ble MR. Justice PIUS C.KURIAKOSE

Dated :28/06/2007

O R D E R

PIUS C. KURIAKOSE,J.


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W.P.(C) No.25829 of 2005
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Dated: 28th June, 2007



JUDGMENT

This Writ Petition is remaining defective for the reason that respondents 1 to 3 who are defendants in the suit have not been served. I am given to understand that the suit has been decreed against them. This being the position and in the nature of the order which is being passed in the Writ Petition, the issue involved in the Writ Petition can be decided even their absence.

2. An application for initiation of garnishee proceedings under Rule 46 A, B and C of Order XXI C.P.C. filed by the plaintiff is seen rejected by Ext.P3 order by the trial court only on the reason that garnishee proceedings are applicable only on the execution side. I am afraid that the learned Munsiff has erred seriously. Rule 11 A of Order XXXVIII of the Code clearly lays down that the provisions of the Code applicable to attachments made in execution of a decree shall, so far as could be, apply to attachments made before judgment and that such attachments will continue after the judgment, by virtue of the provisions to Rule 11. Rule 11 provides that where the property is under attachment by virtue of the provisions of Order XXXVIII and decree is subsequently passed in favour of the plaintiff, it will not be W.P.C.No.25829/05 - 2 - necessary on an application for execution of such decree to apply for reattachment of the property. I would have set aside the impugned order and directed the court below to reconsider the application filed by the petitioner on the reason in view of Order XXXVIII Rule 11 and 11A. But, I am informed that the suit has now been decreed ex parte. Under these circumstances, setting aside the impugned order, I direct the court below to make over the application filed by the petitioner under Order XXI Rule 46 A, B & C to the execution court so that the execution court can deal with that application in accordance with law. The Writ Petition is disposed of as above. No costs.

srd PIUS C.KURIAKOSE, JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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