IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).No. 19895 of 2010(O) -------------------------- E.P.NO.54 OF 2007 IN OS.324/2007 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S): --------------- BIJU,S/O.LATE GOPI,AGED 41, BEENA COTTAGE, VEYILOOR VILLAGE, MUNDAKKAL DESOM,TRIVANDRUM, BY ADV. SRI.A.AHZAR RESPONDENT(S): --------------- VIJAYA KUMARI, D/O.AMBUJAKSHI, BINDU COTTEGE, KADINAMKULAM,PUTHUKURICHI, TRIVANDRUM,695303. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.19895 of 2010 -------------------------------------- Dated this the 25th day of June, 2010. JUDGMENT This Writ Petition is preferred by the additional judgment debtor No.4 in E.P.No.54 of 2007 in O.S.No.324 of 2005 of the court of learned Munsiff, Attingal. Respondent obtained a decree for realization of money against petitioner and others and sought execution of that decree. Petitioner resisted execution on several grounds including that learned Munsiff who passed the decree had no pecuniary jurisdiction to entertain the suit since valuation of plaint exceeded Rupees one lakh, the decree was passed exparte and an application to set aside the exparte decree is pending consideration with an application to condone the delay in filing that application. Learned counsel states that petitioner had valid contentions to be raised in the application to set aside the exparte decree including the jurisdiction of the court to pass such a decree. It is also pointed out that the case is posted on 29.06.2010 for settlement of proclamation. Petitioner seeks a direction to the executing court to keep the execution proceedings in abeyance till 07.07.2010 when the applications preferred on the trial side are coming up for hearing. 2. It is not within the relam of the executing court to consider whether the court which passed the decree had pecuniary jurisdiction or not. Therefore, executing court is right in rejecting the contention raised in that behalf. WP(C) No.19895/2010 2 The objection based on the decree being exparte is also not sustainable. Leaned counsel requested that the execution proceedings may be kept in abeyance until 07.07.2010 so that petitioner can request for stay from the court which passed the decree and which is considering the application to set aside the exparte decree. Having regard to the facts and circumstances stated by learned counsel including the difficulties of the petitioner to raise the amount I am inclined to issue such a direction but subject to condition. Resultantly this Writ Petition is disposed of in the following lines: i. The sale of property shall stand adjourned to a day after 07.07.2010 subject to the following conditions: ii. Petitioner shall file affidavit in the executing court, without prejudice to his contentions in the application to set aside exparte decree, waiving fresh proclamation for sale within a week from this day. iii. Petitioner shall, without prejudice to his contentions deposit a sum of Rs.20,000/- (Rupees Twenty thousand only) in the executing court within a week from this day. iv. In case the above conditions are not complied it will be open to the executing court to proceed with the execution. THOMAS P.JOSEPH, Judge. cks