IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 WP(C).No. 4742 of 2010(O) ------------------------- OS.836/2009 of I ADDL.MUNSIFF COURT, NEYYATTINKARA .................... PETITIONER : ------------------ JOHN VICTOR, S/O. GEORGE, AGED 43 YEARS, JISHA COTTAGE, PONVILA, AYIRAYIL DESOM, KARODU VILLAGE, THIRUVANANTHAPURAM. BY ADVS. MR.G.P.SHINOD MR.RAM MOHAN.G. RESPONDENT : -------------------- GOPINATHAN, S/O. BHASKARA PANICKER, SINDHU SADANAM, THIRUNATTAKAM, PARASSALA VILLAGE, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JVT P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 4742 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 15th day of February, 2010 JUDGMENT This is a petition filed under Article 227 of the Constitution of India seeking to have Exts.P6, P8 and P9 set aside. Further, the petitioner also seeks to have all further proceedings in E.P. No.349 of 2002 in O.S. No.836 of 2001 on the file of Court of the First Addl. Munsiff, Neyyattinkara till final disposal of O.S.No.758 of 2008 pending before that court stayed. Decree was passed in favour of the respondent, entitling to realize Rs.57,000/- from the petitioner with future interest at 12% per annum on Rs.50,000/- . Copy of the E.P. No.349 of 2002 on the file of the Court of the First Addl. Munsiff, Neyyattinkara is produced as Ext.P1. The petitioner stated that he had already discharged the debt due to the decree holder. It is also stated that the decree holder, on receipt of the amount, issued a receipt on 25-3-2002. It is for the said amount the Execution Petition was instituted. W.P.(C) No. 4742/10 2 2. On receipt of the notice in the Execution Petition, the petitioner entered appearance before the court below and filed objection to the effect that the decree debt has already been satisfied. Later, the petitioner filed E.A. No.87 of 2007 under Order XXI Rule 2 of the Code of Civil Procedure and E.A. No.111 of 2007 to send Ext.P2 receipt for Expert opinion. Both the applications were dismissed by the court below by a common order, that was challenged before this Court by filing W.P.(C) No.25991 of 2008. This Court by Ext.P3 judgment dismissed the petition, observing that the order will not dis-entitle the petitioner to claim the amount from the decree holder by separate proceedings. 3.Soon thereafter, the petitioner filed O.S. No.758 of 2008 before the Munsiff's Court praying for a declaration that the payment of Rs.50,000/- to the respondent on 23-5-2002 was towards the decree debt in O.S. No.836 of 2001 or in the alternative for realization of the said amount with interest. Copy of the plaint is produced as Ext.P4. The said suit is pending. In the meanwhile, the decree holder initiated execution proceedings and that causes prejudice to the petitioner, according to the petitioner. The petitioner moved the court W.P.(C) No. 4742/10 3 below under Order XXI rule 19 of the Code of Civil Procedure to stay lower court proceedings till the suit is disposed of. That was dismissed. The petitioner contendeds that the court below ought to have allowed Ext.P5 petition and stayed all proceedings in E.P. No.349 of 2002. 4. I find no merit in the above contention. The claim is under Order XXI rule 19 of the Code of Civil Procedure. If the petitioner has a case that he paid the amount towards the decree, it is only proper for him to recover the money by way of separate proceedings, since there is no certification of the payment alleged to have been made by him. He has resorted to that remedy. Therefore, the prayer for stay of E.P.No.349 of2002 does not arise for consideration. However, it is pointed out by the learned counsel for the petitioner that the court below without adverting to any of the objections raised by the petitioner ordered settling of proclamation and hence till final disposal of E.P. No.349 of 2009 all proceedings may be kept in abeyance. 5. Considering the facts and circumstances of the case, the court below is directed to consider objection to E.P. No.349 of 2009 filed by the petitioner and proceed in accordance with W.P.(C) No. 4742/10 4 law. Till then, all further proceedings pursuant to Ext.P9 shall be kept in abeyance. The writ petition is disposed of as above. P.BHAVADASAN, JUDGE. mn.