IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 CRP.No. 487 of 2008() --------------------- AGAINST THE ORDER DATED 09/04/2008 IN EP.175/2006 IN OS.334/2003 of PRINCIPAL SUB COURT,ERNAKULAM .................... REVN. PETITIONER: ------------------ 1. THE MUTUAL AID BANKERS, NOW AT KASSIM BUILDING, PROVIDENCE ROAD, ERNAKULAM COCHIN -18. 2. P.L. NAVIS, S/O LATE SRI LEONS, RESIDING AT PAYOLI HOUSE, PADAMUGAL P.O., KAKKANAD, KOCHIN 682 030 BY ADV. RRI.BABU CHERUKARA RESPONDENTS: ------------- MR. JOSEPH GOMEZ, S/O SRI KARMEL GOMEZ, ZEA VIEW COTTAGE,VALLARPADAM, ERNAKULAM DISTRICT. BY ADV. SRI.T.K.RADHAKRISHNAN FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.1398 OF 2008 IN CRP 487/2008 DISMISSED 25.7.2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE lgk M.SASIDHARAN NAMBIAR, J. ........................................... CRP.No. 487 OF 2008 ............................................ DATED THIS THE 25TH DAY OF JULY, 2008 ORDER This petition is filed under Section 115 of Code of Civil Procedure challenging the order passed by the executing court to proclaim and sell ten cents of land, which is only portion of the property attached. 2. Learned counsel appearing for petitioners and respondent were heard. The argument of the learned counsel is that though property is directed to be sold for realisation of the decree debt, the amount realised by respondent, pursuant to the judgment in the criminal case, whereunder petitioners were directed to pay compensation under Section 138 of Negotiable Instruments Act, was not taken into consideration and from the decree amount, the amount paid by petitioners as compensation should have been deducted. 3. Respondent contended that the criminal case initiated under Section 138 of Negotiable Instruments Act, does not relate to the plaint claim in O.S.344 of 2003 and therefore compensation paid in the criminal case cannot be deducted from the amount payable under the decree in O.S.344 of 2003. CRP 487/2008 2 4. Admittedly, petitioners did not raise a contention in O.S.344 of 2003 that the cheques issued in favour of respondent, based on which the criminal case under Section 138 of Negotiable Instruments Act was initiated, relate to the plaint claim or that the amount, if any paid therein, is to be adjusted towards the decree debt. There is no material to prove that plaint claim relates to the claim for which the dishonoured cheques were issued. Though learned counsel appearing for petitioner produced photocopies of the dishonoured cheques as well as criminal complaint, on the materials produced, it is not possible to hold that both the claims are in respect of the same. In such circumstances, there is no illegality or irregularity in the impugned order passed by learned Sub Judge. If the case of petitioners is that the amount covered by the dishonoured cheque and the fixed deposit receipts relate to the same transaction, petitioners are entitled to file a separate suit for realisation of the same. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-