IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WP(C).No. 19326 of 2008(A) -------------------------- OS.59/2002 of SUB COURT, MANJERI .................... PETITIONERS: --------------- 1. MOIDEEN HAJI , AGED 78 YEARS S/O. PALATHUMKANDATHIL KUNJALAN HAJI KEEZHMURI DESOM, MALAPPURAM AMSOM, ERANAD TALUK. 2. UMMER, AGED 43 YEARS S/O. PALATHUMKANDATHIL KUNJALAN HAJI KEEZHMURI DESOM, MALAPPURAM AMSOM, ERANAD TALUK. BY ADV. SRI.T.R.ASWAS SRI.ANIL KUMAR SREEDHARAN RESPONDENT: ------------- K.T.THOMAS, AGED 53 YEARS S/O. KIZHAKKEKARA THOMAS.POTTASSERY AMSOM DESOM MANNARKAD TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.19326 OF 2008 =========================== Dated this the 26th day of June, 2008 JUDGMENT This petition is filed under Article 227 of the Constitution of India to quash Ext.P4 order passed by Sub Judge, Manjeri issuing a cheque for Rs.50,000/- in favour of respondent plaintiff. The suit was for realisation of amount due from the petitioners. It was originally decreed ex parte. Petitioners filed application under Rule 13 of Order IX of Code of Civil Procedure to set aside that ex parte decree. It was allowed on condition of depositing cost of Rs.3000/- and Rs.50,000/-. It was deposited. The ex parte decree was set aside. Subsequently after evidence suit was decreed on 16.11.2007. Respondent thereafter filed a cheque application for withdrawing Rs.50,000/- in court deposit which was resisted by petitioners contending that they have taken steps to file an appeal challenging the W.P.(C)19326/2008 2 decree. Under Ext.P4 order learned Sub Judge issued the cheque. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioners was heard. 3. The argument of the learned counsel is that without filing an execution petition learned Sub Judge should not have allowed respondent to withdraw the amount. It was argued that out of the amount in court deposit only Rs.3000/- was deposited as cost and the balance as per the direction issued by the court while setting aside the ex parte decree and in such circumstance before the expiry of the period available for the petitioners to challenge the decree, Sub Judge should not have issued the cheque. 4. Eventhough the suit was decreed on 16.11.2007 petitioners did not file an application as provided under Rule 5 of Order XL1 to stay the execution of the decree till an appeal could be W.P.(C)19326/2008 3 filed after getting certified copy. Eventhough an appeal was filed, court fee was not paid and therefore petitioners did not get any order from this court. So long as there is no order of stay of execution, learned Sub Judge was justified in permitting respondent to withdraw the amount in the light of the decree passed. I do not find any illegality or irregularity warranting interference in that order. Learned counsel appearing for petitioners submitted that if ultimately in the appeal petitioners are to succeed, then petitioners will be without any remedy. If that be the case petitioners are entitled to realise the amount from the respondent. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006