Gujarat High Court
Kanyakumari vs Dakshaben on 9 February, 2011
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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MCA/533/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION No. 533 of 2009
In
SPECIAL
CIVIL APPLICATION No. 856 of 2009
=========================================================
KANYAKUMARI
DISTRICT CO OP SPINNING MILLS LTD - Applicant(s)
Versus
DAKSHABEN
KISHORKUMAR MORJARIA & 2 - Opponent(s)
=========================================================
Appearance
:
MR
INDRAVADAN PARMAR for
Applicant(s) : 1,
NOTICE NOT RECD BACK for Opponent(s) : 1 - 3.
MR
DEEP D VYAS for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 09/02/2011
ORAL
ORDER
By way of present application, the applicant has inter alia prayed for suitably modifying/ delete and/or clarifying the remarks and observations made in paragraphs 1, 2 and 3 of the order dated 05th February 2009 passed in Special Civil Application No.856 of 2009.
Having considered the contentions raised by the learned advocate for the applicant, averments made in the application and the documentary evidence produced on record, it transpires that this Court in paragraphs 1, 2 and 3 of the said order dated 05th February 2009 has made the following observations :
"1.
Considering the order served to the present petitioner in the year 1998 which was responded by the petitioner vide letter dated 8th January, 1999, copy of which is placed on record by the petitioner, the order passed by the executing court directing the petitioner to deposit the amount which is undisputedly much less than the original decretal amount claimed in the execution petition, is found legal and in accordance with law. It is not possible for this Court to agree with the submission made by the learned counsel for the petitioner that formal notice ought to have been served as contemplated under Rule 46B of Order 21 of Code of Civil Procedure. The amount was practically kept under attachment with the present petitioner pending the hearing and disposal of the suit. The decree is drawn much later in the year 2000. Merely because decree was exparte against the original defendant, would not add any strength in the case of the petitioner. On the date of service of order of the Court and on the date on which the petitioner responded to the trial court dealing with the suit filed by the respondent no.2, the amount was due to the defendant of the original suit by the present petitioner and therefore, the petitioner ought to have retained that amount in some suspense account so that in the event of orders that may be passed in future in the executing proceedings, the petitioner can deposit the said amount with the executing court.
2. The petitioner is a loss making institution and is being maintained by the Tamil Nadu Government only with a view to help poor labourers serving with the unit since years would not make any change, because, the executing court dealing with the proceedings cannot look into such equitable issues. If the Tamil Nadu Government is really interested in the activities of the unit, then, the persons managing the affairs should arrange for payment or make themselves ready to put themselves in the category of a judgment debtor, i.e., in the status of original defendant no.1-judgment debtor.
3. The Court is of the view that pendency of revision application and dispute which requires to be resolved by the Court in revision application would not change the situation either legally or factually so far as the present petition is concerned, because, if the petitioner decides to put itself in the category of judgment debtor, then, at the time of actual execution of the decree against the present petitioner, the petitioner can very well insist for transfer of a decree like the original judgment debtor pulling out itself from the category of a person who is supposed to obey or abide by the order of Garnishi."
On perusal of the aforesaid paragraphs, it transpires that this Court has only hoped that if the Tamil Nadu Government is really interested in the activities of the unit, then, the persons managing the affairs should arrange for payment or make themselves ready to put themselves in the category of a judgment debtor, i.e., in the status of original defendant no.1-judgment debtor. Thus, the hope is envisaged in the said paragraph. It is crystal clear that there is nothing against the Government of Tamil Nadu. Hence, I am of the opinion that the said order is neither required to be reviewed nor any part thereof is required to be deleted.
In view of aforesaid, present application fails and is, accordingly, rejected. Notice is discharged. No order as to costs.
(K.S. Jhaveri, J) Aakar Top