IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 OP(C).No. 943 of 2010(O) ------------------------ OS.108/2009 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONERS: ---------------------- 1. MIMI, W/O.KALLIKATT SAJAN, AGED 41 YEARS, MURINGOOR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. MUHAMMED ANWAR SHAH, S/O.MUHAMMED KASIM, AGED 52 YEARS, CHATHANAI PARAMBIL, EAST CHALAKUDY, THRISSUR DISTRICT. 3. SABITHA, W/O.KARIMALIVEETTIL RAGHAVAN, AGED 44 YEARS, KIZHAKKE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.I.ABDUL RASHEED SRI.K.A.SHAMSUDEEN SMT.BHAMA G. NAIR SRI.N.M.SIYAD RESPONDENTS: --------------- 1. BOSE, AGED 40 YEARS, S/O.PALLIPATTU BALAKRISHNAN, THURAVOOR KARA, THURAVOOR VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN-683586. 2. SALEEM, AGED 43 YEARS, S/O.M.P.SAIDALI, MALLISSERY PARAMBIL, ERUMATHALA KARA, EDAYAPURAM P.O., ALUVA EAST VILLAGE, ALUVA TALUK, PIN-683105. OP(C).No. 943 of 2010 3. SAJI, AGED 42 YEARS, S/O.ALUNGAPARAMBIL SIVAN, ANGAMALY KARA, ANGAMALY VILLAGE, ALUVA TALUK, PIN-683573. 4. JOY, AGED 42 YEARS, S/O.KANJIRATHINGAL MANI, ANGAMALY KARA, ANGAMALY VILLAGE, ALUVA TALUK, PIN-683573. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 943 of 2010 APPENDIX PETITIONERS EXHIBITS: EXHIBIT P1 : DECREE DTD 09.04.2010 EXHIBIT P2 : RECEIPT DTD 09.09.2010 FOR DEPOSITING THE AMOUNT IN THE SUB TREASURY, IRINJALAKKUDA IN THE ACCOUNT OF the SUB COURT, IRINJALAKKUDA EXHIBIT P3 : I.A.NO.3312 OF 2010 IN O.S.NO.108 OF 2009 OF SUB COURT, IRINJALAKKUDA EXHIBIT P4 : ORDER DTD 17.09.2010 IN I.A.NO.3312 OF 2010 IN O.S.NO.108 OF 2009 OF SUB COURT, IRINJALAKKUDA RESPONDENTS EXHIBITS: NIL True Copy THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.943 of 2010 --------------------------------------- Dated this 06th day of December, 2010 JUDGMENT Heard both sides. 2. There was a decree for payment of money against petitioner passed by learned Sub Judge, Irinjalakkuda in O.S.No.108 of 2009. Challenging the decree to the extent it related to interest and cost, respondents have preferred R.F.A.No.654 of 2010. In the meantime petitioner deposited certain amount in the Civil Court Deposit and filed application under Rule 2(2) of Order XXI of the Code of Civil Procedure (for short, “the Code”) to record full satisfaction. That application was returned by the learned Sub Judge observing that R.F.A.No.654 of 2010 is pending. That order is under challenge. Learned counsel for petitioner contends that whatever be the outcome of R.F.A.No.654 of 2010, there is nothing wrong in the executing court recording full satisfaction of the decree. Learned counsel for respondent opposed the prayer contending that full satisfaction can be recorded only after disposal of R.F.A.No.654 of 2010. 3. It is seen that executing court has returned the application for the mere reason that R.F.A.No.654 of 2010 is O.P(C).No.943 of 2010 : 2 : pending. Assuming that on account of pendancy of R.F.A.No.654 of 2010 full satisfaction cannot be recorded there is nothing which prevented executing court from recording the fact of payment of the amount covered by the Civil Court Deposit if it is otherwise in order and as provided under law. The executing court has to consider that aspect of the matter. In that view, the order under challenge cannot be sustained and is liable to be set aside. Resultantly, this original petition is allowed and Ext.P4, order is set aside. Application (it appears to be wrongly numbered as application No.123 of 2010 in the trial side) in O.S.No.108 of 2009 is remitted to the court below for fresh decision. I make it clear that if on account of pendancy of appeal at the instance of respondent full satisfaction cannot be recorded executing court shall consider whether payment of the amount deposited could be recorded as contemplated under Rule 2(2) of Order XXI of the code after hearing the respondents as well. Parties shall appear in the executing court on 17-12-2010. (THOMAS P JOSEPH, JUDGE) Sbna/-