IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 12466 of 2004(H) -------------------------- AGAINST THE ORDER IN EP.129/03 IN OS.454/1999 of MUNSIFF COURT, NADAPURAM .................... PETITIONER(S): --------------- K. BHASKARAN, S/O. KANNAKKURUP, AGED 56 YEARS, KUTTOTH HOUSE, IYYANKODE AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. .SRI.C.P.MOHAMMED NIAS SRI.E.NARAYANAN RESPONDENT(S): --------------- 1. SUGAMA INVESTMENT CHITS AND FINANCE NADAKKAV, REPRESENTED BY ITS MANAGING PARTNER MR. P.T. THOMAS, S/O THOMAS. 2. T.T. JOSEPH, S/O. THOMAS, AGED 57 YEARS, PARTNER, SUGAMA INVESTMENT CHITS AND FINANCE, NADAKKAVU, RESIDING AT VRINDAVAN COLONY, CHEVAYUR AMSOM AND DESOM, KOZHIKODE. 3. V.P. JANARDHANAN, S/O. KRISHNAKURUP DEPUTY HEAD MASTER, G.H.S.S. VALAYAM, NADAPURAM, KOZHIKODE. ADV.SRI.E.NARAYANAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:- P1: A true copy of the statement dated 20-1-2004. P2: A true copy of the order in E.A.No.29/2004 dated 28-1-2004. P3: A true copy of the memo dated 15-3-2004. P4: A true copy of the order dated 22-3-2004. P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 12466 of 2004 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 25th September, 2009 JUDGMENT This writ petition is filed under Article 227 of the Constitution of India by the 1st respondent in E.P. No.129 of 2003 in O.S. No. 454 of 1999 of Munsiff’s Court, Kozhikode, which was transferred to the Munsiff's Court, Nadapuram and now pending before that court. 2. The facts leading to this writ petition, in brief, are as follows:- The plaintiff, who is the 1st respondent in this writ petition, Sugama Investment Chits and Finance, Nadakkav, represented by its Managing Partner, Mr. P.T.Thomas, filed the suit for recovery of the amount from the petitioner and the 3rd respondent who are the defendants in the suit. The suit was decreed. The plaintiff filed the above said Execution Petition, which was transferred to the Munsiff's Court, Nadapuram. During the pendency of the Execution Petition, the matter was settled between the parties and the petitioner and the 3rd respondent, who are the judgment debtors, had discharged the debt. The plaintiff firm was initially represented by the Managing Partner, P.T.Thomas. At present, the affairs of the plaintiff firm were managed by the 2nd respondent, T.T.Joseph. The 1st respondent firm represented WPC 12466/04 2 by the 2nd respondent filed a statement Ext.P1 on January 20, 2004 before the Executing Court to withdraw the Execution Petition, as the matter has been settled. This was opposed by Adv. Sri.P.Balagopalan who was appearing initially for the plaintiff firm represented by the Managing Partner Mr. P.T.Thomas. The trial court, instead of accepting the settlement, issued warrant against the revision petitioner. Therefore, the 2nd respondent filed E.A.No.29 of 2004 before the Executing Court to withdraw the vakalath entrusted to Sri.P.Balagopalan. By Ext.P2 order dated January 28, 2004 the Executing Court dismissed the Execution Application. Thereafter, the original counsel appearing for the plaintiff firm Sri.K.M.Musthafa filed Ext.P3 memo dated March 15, 2004 before the Munsiff's Court, Nadapuram stating that as the matter has been settled between the parties, the Execution Petition may be dismissed. Thereafter, the 2nd respondent filed E.A. No.59 of 2004 before the Executing Court to get himself impleaded in the Execution Petition and E.A. No.60 of 2004 for consequential amendment in the Execution Petition. The Executing Court dismissed both these petitions by Ext.P4 order dated March 22, 2004 and issued warrant against the petitioner. In this writ petition, the petitioner prays for an order of issuance of a writ of mandamus or appropriate direction to the Executing Court not to proceed with the warrant of arrest and for appropriate reliefs. WPC 12466/04 3 3. Notice was issued to respondents 1 and 2, which was not served. Therefore, notice was ordered to be served on the counsel appearing for the 1st respondent before the Executing Court. There was no appearance for respondents 1 and 2. 4. It is seen from Ext.P1 a copy of the memo filed by the original advocate before the Executing Court that the matter has been settled and the decree holder firm has received the entire decree amount from the petitioner and the 3rd respondent. That being so, the Executing Court should have dismissed the Execution Petition, instead of issuing warrant against the petitioner. It is clearly illegal. Therefore, the order of the Executing Court issuing warrant against the petitioner has to be set aside and the Execution Petition has to be dismissed. 5. In the result the writ petition is allowed. The order of the Executing Court issuing warrant against the petitioner in E.P.No.129 of 2003 in O.S. No.454 of 1999 of Munsiff's Court, Kozhikode and now pending before the Munsiff's Court, Nadapuram is set aside and the E.P.No.129 of 2003 is dismissed. The writ petition is allowed as above. P.Q. BARKATH ALI, JUDGE mn