IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 12159 of 2010(O) -------------------------- OS.126/2001 of SUB COURT, MANJERI .................... PETITIONER: --------------- P.T.ASHRAF, S/O. ABDULLA HAJI, RESIDING AT PARATHODI HOUSE, ARAKAYAM, MANJERI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN RESPONDENT: --------------- UNNIYAN, S/O. KALLORAKKAM UNNIYANKUTTY, RESIDING AT PATHAMKULAM, VANIYAMKULAM OTTAPPALAM, PALAKKAD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12159 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.126 OF 2001 BEFORE THE SUB COURT,L OTTAPPALAM DATED 12-09-2001 EXHIBIT P2 : EX PARTE DECREE DTD. 30.10.2001 IN O.S.No.126 OF 2001 BEFORE THE SUB COURT,L OTTAPPALAM EXHIBIT P3 : JUDGMENT DT. 1st SEPTEMBER 2004 IN C.M.A.No.57 OF 2004 IN I.A.1354 OF 2004 BY the DISTRICT COURT, PALAKKAD EXHIBIT P4 : JUDGMENT IN W.P.C.No.20826 OF 2005 DTD. 27.09.2006 EXHIBIT P5 : AFFIDAVIT FILED BY the PETITIONER IN E.P.158 OF 2003 ON THE FILE OF SUB COURT, MANJERI RESPONDENTS EXHIBITS: NIL True Copy P. A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.12159 of 2010 --------------------------------------- Dated this 28th day of July, 2010 JUDGMENT Defendant in O.S.No.126 of 2001 of the court of learned Sub Judge, Ottappalam is the petitioner before me. He suffered Ext.P2, ex parte decree for payment of money. Though petitioner filed an application to set aside the ex parte decree, that ended in a dismissal. That order was challenged in C.M.A.No.57 of 2004 before learned District Judge, Palakkad. As per Ext.P3, judgment learned District Judge allowed the appeal on condition that petitioner shall furnish security, deposit or furnish bank guarantee for the decree amount with interest @ 6% per annum from the date of suit and pay cost of Rs.2500/-. That direction in Ext.P3, judgment was challenged in W.P.C.No.20826 of 2005. This court as per Ext.P4, judgment confirmed Ext.P3, judgment and granted thirty days' time to comply. According to the petitioner, in compliance of Exts.P3 and P4, judgments he has furnished security at Sub Court, Manjeri to which court decree certificate was transmitted for execution. That court issued an order for issue of warrant of arrest against petitioner which is under challenge in this writ petition. W.P.C.No.12159 of 2010 : 2 : 2. Though respondent/plaintiff was served on this petition, he remains absent. Learned counsel for petitioner contends that since security has been furnished and costs also is deposited as directed in Ext.P3, judgment ex parte judgment and decree against petitioner stand set aside and hence there is no decree in force to be executed by the transferee court. 3. In the light of contention urged by the petitioner that security was furnished and cost deposited in the transferee- executing court, I called for reports from learned Sub Judge, Manjeri. It is reported that petitioner judgment debtor in E.P.No.158 of 2003 (in O.S.No.126 of 2001 of the Sub Court, Ottappalam) of that court has produced assignment deed with receipt for payment of revenue as security and this security was furnished and cost was paid on 26-10-2006 (which is within thirty days from the date of Ext.P4, judgment) security furnished was accepted by order dated 16-12-2006. 4. No doubt, petitioner ought to have furnished security and deposited cost in the trial court (ie. Sub Court, Ottappalam) instead of doing so in Sub Court, Manjeri. Learned counsel states it was because execution petition was pending in the latter court security was furnished and cost paid there. Though procedure W.P.C.No.12159 of 2010 : 3 : adopted by the petitioner is irregular that could be rectified by directing learned Sub Judge, Manjeri to transfer the security furnished along with documents furnished before learned Sub Judge, Manjeri be transmitted to the court of learned Sub Judge, Ottappalam to be held as security in that court as directed in Exts.P3 and P4, judgments. So far as the sum of Rs.2500/- (if deposited by petitioner in the executing court and if not so far withdrawn by the respondent) is concerned, petitioner shall withdraw that amount and deposited the same in the court of learned Sub Judge, Ottappalam within fifteen days of such withdrawal. Application for withdrawal shall be made within a month from this day. 5. I have gone through Ext.P3, judgment. It is seen that on compliance of the condition referred to therein ex parte judgment and decree would stand set aside. The condition has been complied by the petitioner. As such, there is no judgment and decree in force. It follows that executing court could not have proceeded against petitioner in execution of the said decree. Hence execution proceedings against the petitioner cannot continue. Resultantly writ petition is allowed in the following lines: W.P.C.No.12159 of 2010 : 4 : (i) E.P.No.158 of 2003 of the court of learned Sub Judge, Manjeri (in O.S.No.126 of 2001 of the court of learned Sub Judge, Ottappalam) will stand quashed since on compliance of Ext.P3, judgment, ex parte judgment and decree in O.S.No.126 of 2001 stand set aside. (ii) Learned Sub Judge, Manjeri is directed to forthwith transmit the security furnished by petitioner along with documents produced therein to the learned Sub Judge, Ottappalam who shall hold the said security as being in compliance of the direction contained in Exts.P3 and P4, judgments. (iii) In case cost is deposited in the court of learned Sub Judge, Manjeri and the same is not withdrawn by the respondent, petitioner is directed to withdraw the said amount and deposit in the court of learned Sub Judge, Ottappalam within fifteen days from the date of withdrawal of the amount from the court of learned Sub Judge, Manjeri. Application for withdrawal shall be made within one month from this day. (iv) Learned Sub Judge, Ottappalam shall W.P.C.No.12159 of 2010 : 5 : on receipt of the security referred to in clause (ii) above and deposit (if any required) as provided in clause (iii) above re-open the case (O.S.No.126 of 2001) after issuing notice to the parties and proceed with it as provided under law. (v) It is made clear that in case the condition referred to in clause (iii) above is not complied, this writ petition will stand dismissed and it will be open to learned Sub Judge, Manjeri/Ottappalm to proceed with execution of the decree. (THOMAS P JOSEPH, JUDGE) Sbna/-