IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 OP(C).No. 422 of 2011(O) ------------------------ AGAINST THE ORDER IN IA 1119/2010 IN OS.251/2010 OF ADDITIONAL SUB COURT, PALAKKAD .................... PETITIONER: ------------------ KUTTYKRISHNAN,S/O.CHAMI,AGED 58 YEARS, SREE SAILAM,VADAVANNUR,CHITTUR TALUK. BY ADV. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA RESPONDENT(S): 1 ---------------- BALASUBRAMANIAN, S/O.NANJAPPA GOUNDER, ATTAYAMPATHI, MUTHALAMADA, CHITTUR TALUK-678507. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- O.P.(C).No.422 of 2011 ---------------------------------------- Dated this the 23rd day of February, 2011 JUDGMENT The petitioner is the plaintiff in O.S.No.251 of 2010 on the file of the Additional Sub Court, Palakkad. The prayer in the Original Petition is to issue a direction to the Additional Sub Court, Palakkad to dispose of I.A.No.1119 of 2010 as expeditiously as possible. There is also a prayer to issue a direction to the Principal Sub Court, Palakkad to keep in abeyance the warrant of arrest issued in E.P.No.82 of 2007 in O.S.No.45 of 2006, till the disposal of I.A.No.1119 of 2010 in O.S.No.251 of 2010. 2. O.S.No.45 of 2006 was filed by the respondent against the petitioner for realisation of money. The suit was decreed ex-parte. The case of the petitioner is that the matter was settled between the parties and an agreement O.P.(C)No.422/2011 2 was executed between them. In terms of the agreement, a sum of ` 2,15,000/- was paid to the decree holder. However, the decree holder filed E.P.No.82 of 2007, for realisation of the decree amount with interest. According to the petitioner, the Execution Petition was filed contrary to the terms of the agreement. As per Exhibit P3 order dated 16.3.2010, the executing court negatived the contentions put forward by the petitioner and allowed the Execution Petition. It was held that the petitioner herein shall be detained in civil prison for a period of two months or till the date of payment of the entire decree debt. Exhibit P3 order was challenged by the petitioner in W.P.(C) No.9411 of 2010, which was disposed of as per Exhibit P4 judgment dated 1.11.2010. This Court found that the question of payment or adjustment on the basis of the agreement could not be agitated by the petitioner in the execution proceedings and he could do so only in a separate suit. The findings and observations made by the executing court with respect to the alleged payment and with respect to O.P.(C)No.422/2011 3 the genuineness of the agreement were unnecessary and they were set aside. 3. The petitioner filed O.S.No.251 of 2010 on the file of the Additional Sub Court, Palakkad, for a declaration that as per the agreement dated 20.10.2006, the petitioner had paid a sum of ` 2,15,000/- to the defendant towards the decree debt in O.S.No.45 of 2006. In the alternative, the petitioner also prayed for return of the sum of ` 2,15,000/- from the respondent. In O.S.No.251 of 2010, the petitioner filed I.A.No.1119 of 2010 (Exhibit P5) for an injunction restraining the respondent from continuing the proceedings in E.P.No.82 of 2007 in O.S.No.45 of 2006. I.A.No.1119 of 2010 is pending, though that application was filed on 24.3.2010. At the same time, the petitioner apprehends arrest in execution of the decree in O.S.No.45 of 2006. 4. Though the respondent was served with notice, O.P.(C)No.422/2011 4 there is no appearance. In the facts and circumstances mentioned above, I am inclined to grant the reliefs to the petitioner. Accordingly, the Original Petition is disposed of as follows : The Additional Sub Court, Palakkad shall dispose of I.A.No.1119 of 2010 in O.S.No.251 of 2010, as expeditiously as possible, and at any rate, on or before 31.3.2011. Till the disposal of I.A.No.1119 of 2010, the warrant for arrest of the petitioner issued in E.P.No.82 of 2007 in O.S.No.45 of 2006, Sub Court, Palakkad shall be kept in abeyance. K.T.SANKARAN JUDGE csl