<br /> <br /> <br /> By SRI.K. VIJAYAKUMARAN ACHARY, PRESIDENT.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant is the Decree Holder in OS330/01. The opp.party is a counsel in the above case. In the above case E.P.No.348/03 was filed for realization of Rs.36,475/- being the decree amount interest and cost in the above suit . Due deficiency in service on the part of the opp.party. The above EP was dismissed and thereby the complainant last his opportunity to realize the decree amount.. Thereafter he filed E.P. 394/03. In E.P. 394/03 arrest warrant was issued. Thereafter on 29.11.2005 it was posted for final hearing. But on that day without his knowledge and consent the opp.party made an endorsement in the case EP not pressed. Thereby the EP was dismissed and the complainant lost his opportunity to realize the decree amount. Thus the opp.party has received him when he realize the complainant is likely to initiate legal action again him the opp.party influencing employees of the courts and made endorsement insolvency petition pending before EP not pressed and for the time being after the endorsement EP not pressed. Which can be inferred from on perusing the above exorbitant . Thus the opp.party in collaboration with the Judgement Debtor in the above EP deceived. The complainant which is gross deficiency in service on the part of the opp.party. Hence the complaint.<br /> <br /> The opp.party filed a version contending inter alia. The complaint is not maintainable either in law or on facts. The averments contained in the para 1 and 2 of the complaint are admitted. The averment in para 3 of the complaint are not fully correct. No deficiency in service is committed by the opp.party is alleged. The averment that the complainant sustained a loss of Rs,36,475/- is peruse defamatory and the E.P. No.348/2003 was dismissed for want of steps. Which was within the knowledge of the complainant loss. There after the complainant entrusted the OP to file E.P. 394/03 . The opp.party is an eminent lawyer in Karunagappally and Kollam and having 12 years of Bar experience and high reputation amount the clients and general public. The acts of the complainant is to tarnish the reputation of the opp.party for which the opp.party is reserving his right to file a suit for defamation against this complainant. The allegation that the opp.party made subsequent insertion by influencing the court staffs etc. are highly illegal and the opp.party is taking preparations to legal action against the opp.parties. The complainant is not at all sustained any loss as alleged. The complainant has still the remedy to file fresh EP as the Decrees is not barred by limitation to the best of the knowledge of the opp.party no amount was offered by the Judgement Debtor in the above EP and had it happened at should have made mention in the proceedings of the court. The advocate for the Judgement Debtor in the EP filed an affidavit that the Judgement Debtor has filed I.P.No.6/2006 before the Sub Court, Kollam and when the court observed the legal hurdles in the proceedings in the EP, the opp.party made an endorsement in the EP that “Insolvency petition is pending E.P. not pressed for time being as I.P. No.6/2005 is pending as an advocate the opp.party has discharge duty to the complainant perfectly. There is no cause of action for the complainant against the opp.party and the cause of action alleged is imaginary and in correct. Hence the opp.party prays for dismissal the complaint.<br /> <br /> The points that would arise for consideration are:<br /> <br /> [I] Whether there is deficiency in service on the part of the opp.parties<br /> [ii] Reliefs and costs<br /> <br /> For the complainant PW.1 is examined. Ext.P1 to P4 are marked.<br /> For the opp.party Ext. D1 to D5 are marked.<br /> <br /> Points 1 & 2<br /> <br /> The complainant was examined as PW.1and he proved Ext.P1 to P4. But he did not turn up for cross examination. According to PW.1 the opp.party herein was his counsel in OS 330/2001 before the Munsiffs Court, Karunagappally which was decreed by the court and E.P. 348/2003 was filed for execution of decree. But the opp.party joined with the Judgement Debtor and without the knowledge of the complaint and caused the same to be dismissed. Thereafter E.P.394/03 was filed and when that EP was posted for final hearing again the opp.party joining with the Judgement Debtor therein and made an endorsement. EP not pressed caused the same to be dismissed and thereafter make certain intuition influencing the court starr thereby caused damaged to the complainant. The conduct of the opp.party is gross deficiency in service.<br /> <br /> The opp.party filed affidavit in liew of chief examination. According to the opp.party he has not committed any deficiency in service. E.P.348/03 was dismissed due to insufficient steps and the complainant was fully aware of the same and therefore he entrusted the opp.party to file another EP. 394/03. During the pendency of the 2nd EP the Judgement Debtor therein filed I.P.No.6/2006 before the sub court, Kollam and filed Ext.D4 petition and affidavit praying to stay the proceedings till the disposal of the I.P. In the light of Ext.D4 since IP was pending the opp.party made an endorsement in the “insolvency petition is pending. EP not pressed for time being” and accordingly the EP was dismissed . It is further contended that he had not made any subsequent insertions in the endorsement influencing court staff. Due to the act of the opp.party the complainant did not sustain any loss. The above decree is not barred by limitation and the complainant could file fresh EP at any time. The opp.party made the endorsement in the EP when the court observed the hurdles in proceeding with the EP and that there is no deficiency in service on the part of the opp.party.<br /> <br /> <br /> As pointed out earlier PW.1 did not turn up for cross examination and therefore no evidencing value can be attributed to his evidence. According to the complainant the first time OP joining with the Judgement Debtor therein caused the dismissal of E.P.No.348/03. If that is so one is at a loss to understand as to why he again entrusted to file fresh E.P.394/03. No prudent man would entrust a case to a counsel who deceived him on an earlier occasion. So as alleged by opp.party the dismissal of E.P.348/03 was due to insufficient steps and not due to the reason alleged by the complainant.<br /> <br /> According to the complainant after filing E.P. 394/03 the opp.party again joined with the Judgement Debtor therein and caused the dismissal of the E>P by making any endorsement that the EP is not pressed and thereafter influencing the court staff made certain insutions before the endorsement “Insolvancy petition is pending and after the endorsement” for the time being. The copy of the EP containing the endorsement was produced by both sides. Ext.P2 is the copy produced by the complainant and Ext.D2 is the copy produced by the opp.party. Both Exts. P2 and D2 are certified photostate copies. No attempt is made by any one to produce the original. Form the Photostat copy it cannot be said whether there are any insutions or not.<br /> <br /> Ext.D3 shows that the Judgement Debtor in the case has filed a petition and affidavit stating that the Judgement Debtor has filed I.P. 6/2002 before the sub courts, Kollam. When the IP has been filed the EP has to be stayed. Usually in such circumstances Opp.parties would be closed for statistical purpose. No prejudice would be caused to the Decree Holders in such circumstance es it is settled position of law that an EP closed for statistical purpose can be reopened even if the decree is barred by limitation. Herein there is no such contingency. It cannot be said that the Opp.party has made the endorsement in the EP with any dishonest intention to help the Judgement Debtor therein. If the EP is not closed the same will have to be kept pending as stayed till the disposal of the IP. And for no relying the complainant would be eligible. On a careful consideration of the entire evidence we are of the considered view that there is no deficiency in service on the side of the opp.party. The complaint in our view is actuated by malafides and the same is not maintainable. Point found accordingly.<br /> <br /> In the result the complaint is dismissed. The Opp.party is a practicing lawyer and as submitted by him this case has affected his reputation. Hence we direct the complainant to pay Rs.5,000/ as compensation and Rs.1000/- towards costs. The order shall be complied with within one month from the date of this order.<br /> <br /> Dated this the 31st day of March, 2008.<br /> <br /> <br /> <br /> <br /> I n d e x<br /> <br /> List of witnesses for the complainant<br /> PW.1. – Rajan Pillai<br /> <br /> List of documents for the complainant<br /> P1. – Order of E.P.394/03 in OS 330/01 before the Munsiff Cour, Karunagappally.<br /> P2. – E.P. 394/03 before the Munisff Court, Karunagappaly<br /> P3. – Copy of Registered notice sent to the opp.party.<br /> P4. – Acknowledgement car.<br /> <br /> List of witnesses for the opp.party<br /> DW.1. – Balasubramanian<br /> <br /> List of documents for the opp.party<br /> D1. – Judgement of O.S.No.331/02<br /> D2. – Copy of Executing Petition<br /> D3. - Copy of I.P.No.6/2005<br /> D4. – Reply notice<br /> D5. –Copy of reply notice.<br /> <br />