IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 WP(C).No. 28691 of 2008(N) -------------------------- CMA.82/2007 of D.C. & SESSIONS COURT,KOZHIKODE OS.562/1998 of PRINCIPAL MUNSIFF COURT, KOZHIKODE-II .................... PETITIONER(S): --------------- T.CHANDRAN, AGED 67, S/O.SANKARAN, THARAYIL HOUSE, PO.OLAVANNA, KOZHIKODE. BY ADV. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN RESPONDENT(S): --------------- 1. CATHOLIC SYRIAN BANK LTD., FEROKE BRANCH REP. BY ITS MANAGER, FEROKE AMSOM DESOM, KOZHIKODE TALUK. 2. K.BABU, S/O.KARANCHI RAO, N.B.8, AYISHA BUILDING, NALLALAM AMSOM AND DESOM, KOZHIKODE TALUK. 3. K.K.MUHAMMEDALI,S/O.YAHU, MACHANILAM PARAMBA, CHAKKUMKADAVU, KOZHIKODE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P. (C) No. 28691 of 2008 * * * * * * * * * * * * * * * * * * Dated : 30-09-2008 JUDGMENT Petitioner who is the 2nd defendant in O.S. 562 of 1998 on the file of the Principal Munsiff 's Court. Kozhikode was the second respondent in the E.P. filed by the decree holder bank as E.P. 46 of 2004. The suit ended in an ex parte decree passed on 23-3-2002 for a sum of Rs. 55,849. The petitioner who was the 2nd J.D. in the E.P. remained ex parte. After 132 days he filed Ext.P3 application to set aside the ex parte order under Order 21 Rule 106 C.P.C. The said application was accompanied by Ext.P2 petition to condone the delay of 132 days. Ext.P3 was filed by the petitioner under Order 21 Rule 106 C.P.C. The executing court dismissed the delay petition as well as Et.P3 petition. Aggrieved by the same the petitioner filed C.M. Appeal 82 of 2007 before the District Court, Kozhikode. As per Ext.P9 judgment dated 29-05-2008 the District Judge dismissed W.P.(C) 28691 of 2008 -:2:- the appeal as not maintainable. The appeal was dismissed on the merits as well. It is the said judgment which is assailed in this Writ Petition filed under Art. 227 of the Constitution of India. 2. One of the contentions raised by the petitioner's counsel is that the alleged amount claimed by the plaintiff was actually not due since the petitioner had already remitted the amount in the bank. That was a contention which was available to the petitioner on the original side and he having failed to put forward or substantiate the said contention and having not filed either an appeal from the ex parte decree or an application to set aside the ex parte decree under Order 9 R. 13 C.P.C. cannot raise the very same contention in the execution petition as the same is barred by res judicata. As per Ext.P1 Execution Petition, the decree holder has sought personal execution against the petitioner. The court is yet to consider the same and personal execution can be ordered only if the conditions stipulated under Sec. 51 read with Sec. 55 C.P.C. are made W.P.(C) 28691 of 2008 -:3:- out. In case the decree holder attempts to prove that the petitioner has means or has had the means to pay the decree debt, the petitioner can adduce rebuttal evidence in the enquiry under Order 21 Rule 40 C.P.C. This petition is dismissed upholding the order passed by the courts below. Dated, this the 30th day of September 2008. V. RAMKUMAR, (JUDGE) ani.