Kerala High Court
The District Treasury Officer vs P.T. Thomas
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
THURSDAY, THE 17TH DAY OF JANUARY 2013/27TH POUSHA 1934
OP(C).No. 2682 of 2011 (O)
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E.A. NO.177/2008 AND E.P. NO.161/2008 OF OS.60/2002 OF SUB COURT, KOTTAYAM.
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ORIGINAL PETITIONER:
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THE DISTRICT TREASURY OFFICER,
DISTRICT TREASURY, KOTTAYAM-686 001.
BY GOVT. PLEADER MR.P.P. PADMALAYAN.
RESPONDENT(S):
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P.T. THOMAS, S/O. THOMAS,
PURAYIDATHIL HOUSE, PADINJATTUMBHAGOMKARA,
ATHIRAMPUZHA VILLAGE, KOTTAYAM-686 562.
BY ADVS. SRI.REJI GEORGE,
SRI.RAJEEV.P.NAIR,
SMT.MANJU RAJAN.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2013,
ALONG WITH OPC NO.2684 OF 2011 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
OP(C).No. 2682 of 2011 (O)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE ORDER DATED 26/03/2011 IN E.A. NO.177/2008 IN
E.P. NO.161/2008 IN O.S. NO.60/2002.
EXT.P2 COPY OF THE SCHEDULE.
EXT.P3 COPY OF THE OBJECTION DATED 30/03/2011 FILED IN E.P. NO.161/2008
IN O.S. NO.60/2002 IN THE SUB COURT, KOTTAYAM.
EXT.P4 COPY OF THE NOTICE DATED 07/06/2011 OF THE LEARNED
ADDITIONAL SUB JUDGE, KOTTAYAM.
EXT.P5 COPY OF THE RULE 258(E) OF KERALA TREASURY CODE.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
S.S.SATHEESACHANDRAN, J.
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O.P.(C).NOS.2682, 2683, 2684,
2685, 2686, 2687, 2688,
2689, 2690 & 2691 OF 2011
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Dated this the 17th day of January, 2013
COMMON JUDGMENT
The above Original Petitions have been filed by the District Treasury Officer, Kottayam. Common respondent in all the petitions is a Government contractor. Bills for the works executed by him were not discharged by the Government and Public Works Department. He moved an original petition before this Court for realisation of the amounts due under the pending bills. That original petition had been disposed of fixing time limit for discharging the liability of the respondent, failing which, he was allowed to realise interest on delayed payment. Since the amounts due under the bills were not discharged within the time fixed, the respondent as plaintiff moved separate suits claiming interest for the delayed payments, and those suits were decreed. In the execution proceedings of such decrees, the respondent/decree holder applied for attachment of certain O.P.(C).NOS.2682, 2683, 2684, 2685, 2686, 2687, 2688, 2 2689, 2690 & 2691 OF 2011 amounts in the account of Public Works Department in the District Treasury, Kottayam. Learned Sub Judge passed separate attachment orders on the applications moved by the decree holder. On receipt of the attachment orders, the District Treasury Officer filed objections contending among other grounds that the amounts ordered to be attached are not held by him, but, they form part of a credit account. It was also contended that Treasury Officer is not the custodian of that account and he is authorised only to watch the limit of drawals as fixed under the Government orders, and, subsequent distribution by the Executive Engineer from such accounts. Presumably, such objections were raised as if the Treasury officer had been proceeded by the court as a garnishee, custodian of the funds of judgment debtor - the Government/Public Works Department. Whatever that be, after filing of such objections, the learned Sub Judge passed Ext.P4 notice referring to a letter sent by the District Treasury Officer on even date when objections were filed. Learned Sub Judge in O.P.(C).NOS.2682, 2683, 2684, 2685, 2686, 2687, 2688, 3 2689, 2690 & 2691 OF 2011 Ext.P4 notice expressing a view that authority from the State and PWD Roads Division was not required for the Treasury Officer to comply with the order of attachment gave a further direction to remit the amount or else to face contempt proceedings. That notice passed in the respective execution proceeding in which attachment had been ordered is challenged in the above petitions.
2. The order of attachment passed by the court is one under Order XXI Rule 52 of the Code of Civil Procedure, for short, the 'Code'. That alone was also the request of the decree holder. Where the property sought for under attachment is in the custody of any court or public officer the above provision empowers the court to pass an order of attachment thereof. That order contemplates a prohibition to the Public officer or Court concerned from disbursing the amount attached, retaining the sum ordered until further orders are passed by the court. As against the orders passed the Treasury officer has raised some O.P.(C).NOS.2682, 2683, 2684, 2685, 2686, 2687, 2688, 4 2689, 2690 & 2691 OF 2011 objections. Whatever be the merit of the objections, a judicial order from the court examining such objections before proceeding further in the matter is called for. Order XXI Rule 58 of the Code specifically states where any claim is preferred to, or any objection is made to the attachment of any property attached in execution on the ground that it is not liable for attachment, the Court has to proceed to adjudicate upon such claim or objection. Of course where the court finds that the claim or objection is unnecessarily delayed, it is open to the court to dispense with any enquiry or adjudication on such claim or objection. That is not the case here. When objections were raised by the District Treasury Officer that under the provisions of the Kerala Treasury Code, and also on other grounds as well, why the amount kept in a credit account maintained in the Treasury is not liable to be attached towards satisfaction of the decree, then, it is incumbent upon the court to consider the merit of such objections and pass appropriate orders thereof. Without doing so, it is seen, the learned Sub Judge has issued O.P.(C).NOS.2682, 2683, 2684, 2685, 2686, 2687, 2688, 5 2689, 2690 & 2691 OF 2011 Ext.P4 notice directing the Treasury officer to remit the amount ordered to be attached and if not to face contempt proceedings. That order is irregular and per se illegal.
3. Setting aside Ext.P4 notice, the learned Sub Judge is directed to examine the objections raised by the Treasury officer and then pass appropriate orders over the order of attachment made. That has to be done as expeditiously as possible, at any rate, within a period of one month from the date of receipt/production of a copy of this judgment.
Original petitions are disposed of as indicated above.
S.S.SATHEESACHANDRAN JUDGE prp