IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 WP(C).No. 4097 of 2009(K) EA 217/07 IN EA 137/07 IN EP 88/04 IN ARC.313/2002 OF MUNSIFF-MAGISTRATE COURT,PATTAMBI PETITIONER: --------------- P.K.VASU, S/O.KORAN, AGED 45 YEARS PANNIYAMKUNNIL HOUSE, POST AMAYUR, VIA. PATTAMBI, PALAKKAD DISTRICT, PIN 679 310. BY ADV. SRI.SANTHEEP ANKARATH SMT.N.N.PRASEEDA RESPONDENT: --------------- THE SECRETARY PATTAMBI BLOCK BHAVANA NIRMANA SAHAKARANA SANGHAM LTD NO.P. 816, PATTAMBI. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE AWARD AND DECREE DATED 28.10.2002 IN ARC. NO.313/2002 OF THE ARBITRATOR. EXT.P2 TRUE COPY OF PETITION DATED 17.10.2007 (E.A.NO.217/2007) FILED BY THE PETITIONER IN E.A.NO.137/2007 IN E.P.NO.38/2004 IN ARC.NO. 313/2002 BEFORE THE MUNSIFF-MAGISTRATE'S COURT, PATTAMBI. EXT.P3 TRUE COPY OF COUNTER DATED 13.11.2007 FILED BY THE RESPONDENT IN EA.NO.217/2007 IN EA.NO.137/2007 IN EP.NO.88/2004 IN ARC.NO.313/2002 BEFORE THE MUNSIFF-MAGISTRATE'S COURT, PATTAMBI. EXT.P4 TRUE COPY OF DRAFT SALE PAPERS DATED NIL. EXT.P5 TRUE COPY OF ORDER DATED 31.1.2009 IN EA.NO.217/2007 IN EA.NO.137/2007 IN EP.NO.88/2004 IN ARC.NO.313/2002 PASSED BY THE MUNSIFF-MAGISTRATE'S COURT, PATTAMBI. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 4097 OF 2009 K ------------------------------------------------------ Dated this the 17th March, 2009 JUDGMENT The judgment debtor in E.P.No.88 of 2004 in ARC.No.313 of 2002, on the file of the Court of the Munsiff-Magistrate of Pattambi, has filed this Writ Petition challenging Ext.P5 order dated 31.1.2009, by which, the court below dismissed the application filed by the petitioner under Order XXI Rule 90 of the Code of Civil Procedure. It was contended that the application was being prosecuted under Section 47 of the Code of Civil Procedure though in the application it is mentioned as Order XXI Rule 90 of the Code of Civil Procedure. Learned counsel for the petitioner submitted that, therefore, a Writ Petition is maintainable. Though the remedy of the petitioner is to file a Civil Revision Petition, I am not dismissing the Writ Petition, for the following reasons. 2. When the Writ Petition came up for admission on 6.2.2009, an interim order was passed, which reads as follows: “Admit. Issue notice. The Writ Petition is admitted only for the purpose of enabling the petitioner to pay off the decree debt and to salvage the property, provided the respondent agrees for receiving the amount. It is doubtful whether the Writ Petition W.P.(C) NO.4097 OF 2009 :: 2 :: itself is maintainable since the application was pressed only under Section 47 of the Code of Civil Procedure and since a revision lies against an order under Section 47. However, in view of the submission made by the learned counsel for the petitioner that the petitioner who belongs to scheduled caste and who is a coolie will lose his residential property if the Writ Petition is not entertained, the Writ Petition is being entertained only for the limited purpose mentioned above. There will be an interim stay of delivery of the property for a period of one month. Urgent notice to the respondent by speed post.” 3. Learned counsel appearing for the parties submitted that the matter has been settled between the parties and that in full and final settlement of all the dues to the respondent Bank, the petitioner has paid the necessary amount arrived at on settlement. In view of the payment to the satisfaction of the decree holder, it is agreed that the respondent will execute necessary assignment deed transferring the property in favour of the petitioner at the expense of the petitioner. The Writ Petition is disposed of recording the above submissions. (K.T.SANKARAN) Judge ahz/