IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 AS.No. 851 of 1996 -------------------- ( OS.73/1993 of SUB COURT,KATTAPPANA ) APPELLANT/DEFENDANT: ------------------------------- JOHNY, S/O. VARGHESE, KUMARAPPILLIL VEETTIL, ALAKODE VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT IDUKKI DISTRICT CO-OPERATIVE BANK QUARTERS, PARAMAVU KARA, IDUKKI VILLAGE. BY ADV. SRI.P.V.BABY RESPONDENT/PLAINTIFF: ----------------------------- MATHEW, S/O. THOMAS, AGEDN ABOUT 32, KURUVATHANATH VEETTIL,. VALLAKKADAVU KARA, KATTAPPANA VILLAGE, UDUMPANCHOLA TALUK. ADV. SRI.K.K.CHANDRAN PILLAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/11/2008, ALONG WITH W.P.(C) NO. 28247 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T. SANKARAN, JJ. ...................................................... A.S.No. 851 OF 1996 & W.P.(C) No. 28247 OF 2008 ...................................................... Dated this the 17th November, 2008 J U D G M E N T K.T Sankaran, J: The defendant in O.S.No.73 of 1993 on the file of the court of the Subordinate Judge, Kattappana has filed this Appeal challenging the judgment and decree of the trial court. As per the judgment and decree , the suit was decreed and the appellant was directed to pay a sum of Rs.47,740/- with future interest at 18% per annum from the date of the suit till its realisation and costs. 2. The Writ Petition is filed challenging the order passed by the court below in the execution proceedings. The petitioner, who is the judgment debtor contended that he had furnished security before the court below as ordered in A.S.No. 851 of 1996 and therefore execution cannot be proceeded with. The respondent herein, who is the decree holder, contended that security was not furnished by the petitioner and therefore execution could be proceeded with. 3. The disputes and differences between the parties have been amicably settled with the help and assistance of Adv. Shri R.K. A.S.No. 851 OF 1996 & W.P.(C) No. 28247 OF 2008 2 Muraleedharan. It is submitted that the parties have agreed that the appeal as well as the Writ Petition can be closed and in substitution of the decree passed by the court below, a decree for realization of a sum of Rs.1,02,180/- can be passed. The parties have worked out the possibilities of an amicable settlement and it is agreed that instead of the decree amount, it would be sufficient if the appellant pays a sum of Rs.1,02,180/- to the respondent in the appeal. It is also agreed that the said amount can be recovered from the Death Cum Retirement Gratuity payable to the appellant from the Idukki Co- operative Bank. The Bank was impleaded as additional respondent in the Writ Petition. There will be a direction to the Bank to deduct a sum of Rs.1,02,180/- from the Death Cum Retirement Gratuity payable to the judgment debtor ( the appellant in the appeal and the petitioner in the Writ Petition ) and only the balance amount need be paid to him. The amount so recovered shall be paid to the respondent, Mathew who is the decree holder in O.S.No. 73 of 1993, Sub Court, Kattappana. It is also agreed that the amount deposited by the judgment debtor before the executing court can be withdrawn by the decree holder . 4. In view of the disposal of A.S.No. 851 of 1996 as settled A.S.No. 851 OF 1996 & W.P.(C) No. 28247 OF 2008 3 between the parties, it is not necessary to consider the question referred to the Division Bench by the learned single Judge in the Reference Order dated 24th September, 2008 in the Writ Petition. In view of the settlement, E.P.No.34 of 2005 pending before the executing court shall be closed after disbursing the amount already deposited by the judgment debtor to the decree holder. It is made clear that the direction to the Bank to pay a sum of Rs.1,02,180/- to the respondent shall be treated as an executable decree against the Bank as well as the judgment debtor. In view of the settlement, one half of the court fee paid on the memorandum of appeal shall be refunded to the appellant. 5. The Appeal and the Writ Petition are disposed of as above. C.M.P.No. 5096 of 1996 in A.S.No. 851 of 1996 is dismissed. KURIAN JOSEPH, JUDGE. K.T. SANKARAN, JUDGE. lk A.S.No. 851 OF 1996 & W.P.(C) No. 28247 OF 2008 4 KURIAN JOSEPH & K.T. SANKARAN, JJ. ................................................... A.S. No. 851 OF 1996 & W.P.(C) 28247 OF 2008 ................................................... Dated this the 17th November,2008 J U D G M E N T