IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 WP(C).No. 7718 of 2008(R) ------------------------- AGAINST THE ORDER IN EP.29/2004 IN OS.225/1999 of SUB.COURT,THALASSERY .................... PETITIONER: -------------- FIROZ ABDUL HAMEED, S/O. HAMEED, RESIDING AT DAMAM, SAUDI ARABIA, THROUGH POWER OF ATTORNEY HOLDER P.P.ASSUTTY, S/O. MAYIN, PALAKKAT HOUSE, P.O.PINARAYI. BY ADV. SRI.O.D.SIVADAS RESPONDENTS: ------------------ 1. PUNNAKKAL ISMAIL, S/O. MOIDU, PATHIRIYAD AMSOM, KELALOOR DESOM. 2. PUNNAKKAL ABOOBACKER, S/O. MOIDU, PATHIRIYAD AMSOM, KELALOOR DESOM. 3. MUHAMMADALI, S/O. MOIDU, PATHIRIYAD AMSOM, KELALOOR DESOM. 4. MUSTHAFA, S/O. MOIDU, PATHIRIYAD AMSOM, KELALOOR DESOM. 5. RASHEED, S/O. MOIDU, PATHIRIYAD AMSOM, KELALOOR DESOM. 6. MANAPPATTU NHERALATT ASMA, W/O. ABOOBACKER, RESIDING AT PATHIRIYAD AMSOM, KELALOOR DESOM. BY ADV. SRI.K.C.SANTHOSHKUMAR FOR R6 SMT.K.K.CHANDRALEKHA FOR R6 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ====================== W.P.(C).No.7718 of 2008 ======================= Dated this the 29th day of May, 2008 JUDGMENT This petition is filed by the decree holder to quash Ext.P2 order passed by the Executing Court in Cheque Application No.170/2007 in E.P.29/2004 in O.S.225/1999. The petitioner obtained a decree for realisation of Rs.4,27,500/- with interest at 6% per annum on Rs.3,75,000 from 23.8.1999 from six judgment debtors jointly and severally. Though that decree and judgment were challenged in R.F.A.No.225/2005 and C.M.C.20/2003, those appeals were dismissed. E.P.No.29/2004 was filed for execution of decree. In the execution petition, a draft sale proclamation approved. It was challenged by 6th respondent before this Court in CRP No.203/2007. This Court directed the 6th respondent to deposit Rs.1,00,000/- before the Executing Court. Subsequently, the CRP was disposed of directing the Executing Court to decide whether the property sought to be brought for sale is the property attached and if the property so described in the sale proclamation is the 1/3rd right of the property of the 6threspondent, out of the property of judgment debtors 1 and 3 to W.P.(C).No.7718/2008 2 6 which is allowed to be sold initially, Executing Court was directed to proceed further. Executing Court thereafter passed an order dated 13.12.2007. Subsequently, under Ext.R6 order, the Executing Court reviewed the order for proclamation and sale of the property by order dated 13.12.2007 and directed the decree holder to produce proper draft sale proclamation in respect of 1/3rd share of respondents 1 and 3 to 6 as ordered by the court earlier. The decree holder was directed to produce encumbrance certificate along with the draft sale proclamation. It is thereafter the decree holder filed cheque application No.170/2007 which was dismissed under Ext.P2 order. Ext.P2 was dismissed holding that there is no specific order to pay the amount to the decree holder and he is at liberty to file cheque application after obtaining orders from the High Court. The argument of the learned counsel appearing for the 6th respondent is that Rs.1,00,000/- was deposited by the 6th respondent to avoid proceeding against his property as directed by this Court in CRP No.203/2007 and therefore the decree holder is not entitled to withdraw that amount from Court. W.P.(C).No.7718/2008 3 2. The decree is joint and several. Therefore, 6th respondent is not entitled to contend that the amount covered under decree cannot be recovered from him. Rs.1,00,000/- admittedly belongs to the 6th respondent. It was deposited by him before the Executing Court in view of the directions given by this Court. Therefore the amount due to the decree holder from the judgment debtors including the 6th respondent is more than Rs.4,00,000/-. As Rs.1,00,000/- deposited by the sixth respondent is in court deposit, decree holder is entitled to withdraw that amount from the Executing Court. The Sub Court, Thalassery, is directed to permit the decree holder to withdraw that amount, if a cheque application is filed for the same. The writ petition is disposed of as above. M.SASIDAHRAN NAMBIAR, JUDGE dvs