IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 12105 of 2009(O) -------------------------- AGAINST THE ORDER IN IA 278/09 IN OS.59/1992 of D.C. & SESSIONS COURT,KOLLAM .................... PETITIONER: --------------- B. RAMACHANDRAN UNNITHAN, S/O. BHASKARAN PILLAI, AMMACHI VEEDU, KAIKULANGARA, KOLLAM VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANAKANNAN RESPONDENT: --------------- G. CHANDRAMOHAN UNNITHAN, S/O. GOPALAPILLAI, AMMACHI VEEDU, KAIKULANGARA, KOLLAM VILLAGE, KOLLAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.12105 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 21st May, 2009 JUDGMENT This Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. To issue a writ of certiorari or any other appropriate writ order or direction to call for the records leading to Ext.P5 in so far as it directs the petitioner to furnish the security for the satisfaction of the decree and quash the same. 2. Award to the petitioner the costs of these proceedings; and 3. Grant such other and further reliefs as are just, proper and necessary or may be prayed for. The petitioner is the defendant in O.S.No.59 of 1992 of the Principal Sub Court, Kollam, a money suit in which an ex parte decree was passed against him. He moved an application under Order 9 Rule 13 C.P.C. to set aside the ex parte decree. In a previous proceeding arising from that proceeding, subsequent to the orders passed by this court, the petitioner had deposited Rs.50,000/- as a condition precedent for having further enquiry on his application. Ext.P8, copy of the chalan receipt produced along with the writ petition, indicate that the deposit was made as directed. Subsequently, in another W.P.C.No.12105/09 - 2 - proceeding wherein the petitioner agitated his right to participate in the auction for bursting crackers as offering in the temple managed by the decree-holder plaintiff noticing his liability under the previous decree passed against him, he was permitted to participate in the auction subject to deposit of Rs.1,50,000/-, the outstanding amount due under the decree. That deposit was also made as directed. Thus, he had deposited the entire sum covered by the decree is the case of the petitioner. His application for setting aside the ex parte decree, after enquiry, was dismissed by the trial judge. Impeaching the correctness of that order, he preferred an appeal. The District Judge without taking note of the deposits already made, directed him to furnish security to stay the execution of the ex parte decree, is the grievance canvassed by the petitioner. The legality, propriety and correctness of that order is challenged in the Writ Petition. After hearing the learned senior counsel for the petitioner and also perusing the impugned order and documents produced along with the Writ Petition, I find the decree amount had already been deposited pursuant to the orders passed by this court and under Ext.P7 order by the Additional District Judge, Kollam and as such directing the petitioner to furnish fresh security is not required in the W.P.C.No.12105/09 - 3 - interest of justice. So much so, the order passed by the learned District Judge directing the petitioner to furnish security to satisfy the decree amount as a condition precedent for staying execution of the decree is liable to be set aside. I do so. There will be an order of stay of execution of the ex parte decree till the disposal of the appeal. The learned District Judge shall give the appeal top priority and dispose it as expeditiously as possible. The Writ Petition is allowed. srd S.S. SATHEESACHANDRAN, JUDGE