IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 WP(C).No. 1321 of 2008(G) ------------------------- AGAINST THE ORDER DATED 20/11/2007 IN EA 93/07 IN E.P.57/04 IN OS.33/1997 of SUB COURT, SULTHAN BATHERY .................... PETITIONER: ------------ 1. JOSEPH,S/O. JOSEPH, AGED 43 YEARS KANNAMPILLIL, ADIKOLLI, PULPALLY AMSOM DESOM, SULTHAN BATHERY TALLUK, WAYANAD. 2. SHAJU,S/O. JOSEPH, AGED 40 YEARS KANNAMPILLIL, ADIKOLLI, PULPALLY AMSOM DESOM, SULTHAN BATHERY TALLUK, WAYANAD. 3. T.JOSEPH,S/O.EALIAMMA, AGED 21 YEARS KANNAMPILLIL, ADIKOLLI, PULPALLY AMSOM DESOM, SULTHAN BATHERY TALLUK, WAYANAD. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENTS: ------------- K.J.SHAJI GEORGE, S/O. GEORGE CHELAKKATHADATHIL HOUSE, ADIKOLLI, PULPALLY AMSOM DESOM, SULTHAN BATHERY TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 1321 OF 2008 --------------------- Dated this the 10th day of January, 2008 JUDGMENT This writ petition is preferred against the order of the Subordinate Judge, Sulthnbathery, in EA 93/2007 in EP 57/2004 in OS 33/1997. The case of the petitioners before the court below is that the plaintiff in the above suit has filed a suit for specific performance on the basis of an agreement entered into between the petitioners and the suit was decreed directing the defendants to pay a sum of Rs.5,34,531.50/-. While so, the 3rd judgment debtor has filed a suit for permanent injunction against the Dewaswom. It is submitted that there is a finding to the effect that the petitioners have no title over the plaint schedule property. So that the decree is not executable. The court below held that the suit is decreed on the basis of an agreement and the court did not pass a decree for specific performance. The court relied on the agreement and ordered the defendant to pay the advance amount, which they have already received. So even if it is a void agreement, when the amount is received by the defendants and when the Act contemplated in the WPC NO 1321/08 2 agreement is not fulfilled, they are bound to repay the amount, which they have already received. This is a case where there is more than a decree the doctrine of justice, equity and good conscience also will prevail whereby a person who had obtained the amount promising to do a particular thing fails to do so is bound to reimburse that amount to the person who has been affected by such a transaction. The court below was perfectly justified in holding that the said executing court cannot go beyond the decree and by any stretch of imagination it cannot held to be a decree which is unexecutable under Section 47 of the CPC, which dis-entitles the court to proceed with the execution. Therefore, the writ petition lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps WPC NO 1321/08 3