IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 OP(C).No. 453 of 2011(O) ------------------------ AGAINST THE ORDER DATED 12/11/2010 IN IA 1522/2010 IN AS.41/2010 of PRINCIPAL SUB COURT,KOCHI OS.111/2009 of PRL. MUNSIFF COURT, KOCHI .................... PETITIONER ------------------ C.J.RAPHAEL, S/O.C.A.JOSHUA @ ANTONY JOSEPH, AGED 56 YEARS, NOW RESIDING AT SRAMBIKKAL HOUSE, ST.JOHN PATTOM, HOUSE NO.XV/1843, BEACH ROAD, KOCHI-2. BY ADVS. SRI.T.MADHU SRI.B.S.SURAJ KRISHNA B.S. RESPONDENT: --------------------- P.G.SEBASTIAN, S/O.PUTHENPURAKKAL GEORGE AGED 54 YEARS, PUTHENPURAKKAL HOUSE, HOUSE NO.9/58, SOUTH VELI, FORT KOCHI VILLAGE, KOCHI TALUK, KOCHI-1, ERNAKULAM DISTRICT. BY ADV. SMT.C.P.JYOTHY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK K.T.SANKARAN, J. ------------------------------ O.P(C).No.453 OF 2011 ------------------------------ Dated this the 21 st day of February, 2011 JUDGMENT The respondent filed O.S.No.111 of 2009 on the file of the court of the Munsiff of Kochi against the petitioner for realisation of Rs.40,000/- and interest. The plaintiff alleged that the defendant issued a cheque for Rs.40,000/- in discharge of liability. The cheque was dishonoured. The defendant contended that there was an agreement between the parties and the plaintiff was bound to comply with certain conditions. It was contended that the plaintiff did not fulfill the conditions in the agreement and therefore, he is not entitled to realise the amount covered by the cheque. The trial court found that the issuance of Ext.A1 cheque was not part of Ext.B2 agreement. Accordingly, the suit was decreed. The petitioner filed an appeal before the Sub Court, Kochi as A.S.No.41 of 2010. He filed I.A.No.1522 of 2010 for O.P(C).No.453 OF 2011 2 stay of execution. The appellate court passed Ext.P7 order dated 12.11.2010 granting stay on condition of deposit of Rs.30,000/- within ten days. Ext.P7 is under challenge in this Original Petition, in so far as it relates to the condition to deposit Rs.30,000/-. 2. The court below exercised the discretion as to what condition should be imposed in the matter of grant of stay of execution . The parameters of Rule 5 of Order 41 Code of Civil Procedure should be taken note of by the court below, while exercising the discretion. It cannot be stated that the order passed by the court below is illegal or unsustainable. There is no ground to exercise the jurisdiction under Article 227 of the Constitution of India to interfere with the discretion exercised by the court below. Therefore, the challenge against Ext.P7 fails. O.P(C).No.453 OF 2011 3 3. However, taking into account the facts and circumstances of the case, the petitioner is granted 30 days' time from today to comply with the condition to deposit Rs.30,000/-. If Rs.30,000/- is deposited within the aforesaid period, the order of stay of execution granted in I.A.No.1522 of 2010 in AS No.41 of 2010 will be in force. On the failure to deposit, the consequences will follow. The Original Petition is disposed of as above. K.T.SANKARAN, JUDGE. cms