Elsy vs Food Corporation of India

Thomas P. Joseph, J.—Judgment debtor No. 1 in E.P. No. 317 of 2007 in O.S. No. 1031 of 1989 of the court of learned Sub Judge, Thrissur is the petitioner before me. Respondent obtained a decree for recovery of money against predecessor-in-interest of the petitioner and other judgment debtors. After death of the defendant, respondent filed execution petition against petitioner and other legal representatives of the deceased defendant. Respondent filed Ext.P1, application for attachment of movables which according to the petitioner belonged to her. Petitioner filed objection claiming that the said movables belonged to her and produced certain documents to support that claim. On 27.11.2009 executing court passed an order to attach the movables. That order is under challenge in this Writ Petition. When the matter came up for hearing this Court as per order dated 22.12.2009 directed petitioner to deposit the sum of Rs. 47,250/- which the respondent has shown in Ext.P1, application as approximate value of the movables. This Court also directed that the order of attachment will remain in abeyance. Learned Counsel for petitioner contends that no enquiry was conducted by the executing court on the objection preferred by petitioner that the movables sought to be attached belonged to her.

As per the order of this Court petitioner has deposited Rs. 47,250/- which even according to the respondent is the value of movables sought to be attached. According to the petitioner (she has produced some documents also in the court below) the movables sought to be attached belonged to her. It would appear that the executing court has not enquired into the objection preferred by the petitioner that the movables belonged to her. Executing court ought to have conducted an enquiry into that objection before attachment is ordered. Having regard to the facts and circumstances I direct that the order for attachment of the movables passed on 27.11.2009 shall remain in abeyance until decision on the objection preferred by the petitioner to the application for attachment and be subject to the result of that enquiry. Petitioner shall file affidavit in the executing court undertaking not to remove or dispose of the movables referred to in Ext.P1. Resultantly this Writ Petition is disposed of in the following lines:

i. Executing court is directed to conduct an enquiry into the objection preferred by the petitioner against Ext.P1, application for attachment.

ii. The order of attachment passed on 27.11.2009 will remain in abeyance until decision on the objection and be subject to the finding to be entered by the executing court on that objection.

iii. Petitioner shall file affidavit in the executing court within two weeks from this day undertaking not to remove or dispose of the movables referred to in Ext.P1, application until enquiry is over.

iv. The amount deposited by petitioner in the executing court as per order dated 23.12.2009 of this Court shall remain in such deposit until the executing court decides on the objection preferred by the petitioner.

I.A. No. 6992 of 2010 will stand dismissed.