IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 WP(C).No. 1231 of 2009(V) ------------------------------------------ CMA.132/2006 of DISTRICT COURT, PALAKKAD OS.300/2005 of MUNSIFF COURT, CHITTUR (IA 1537/05) .................... PETITIONER: HEMAMBIKA, W/O. VISWAKUMAR, AGED 37, RESIDING AT THILLAVANDU HOUSE, H.NO. 8/245, THILLAVANADUTHARA, KODUVAYUR VILLAGE, CHITTUR TALUK. PALAKKAD TALUK. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENTS: 1. BABU @ SUBRAMANIAN, S/O. SANKARAN, AGED 43 YEARS, RESIDING AT AYILLIYAMM PALLIKULAM DESOM, PIRAYIRI AMSOM, PALAKKAD TALUK. 2. UNNIKANNAN S/O. DORASWAMY, AGED 39 YEARS, RESIDING AT C.T. PALAYAM, H. NO. 11/112, KOLLENGODE NO.1, VILLAGE, CHITTUR TALUK, PALAKKAD DIST. 3. LATHA D/O. DORASWAMY, AGED 35 YEARS, RESIDING AT C.T. PALAYAM, H.NO. 11/112, KOLLENGODE NO. 1 VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.1231 of 2009 V -------------------------- JUDGMENT Heard counsel on both sides. 2. Petitioner is the plaintiff in O.S.No.300/05 on the file of the Munsiff's Court, Chittur and this writ petition is filed assailing the concurrent order passed by the courts below refusing to grant injunction restraining execution of the decree passed ex parte in O.S.No. 104/01 on the file of the same court, viz., Munsiff's Court, Chittur. First respondent is the plaintiff/decree holder in O.S.No.104/01 aforesaid. It is submitted that respondents 2 and 3 in this writ petition are defendants 2 and 3 in O.S.No. 300/05, but that the second respondent alone is the other defendant in O.S.No.104/01 and the third respondent is not a party in that suit; that execution of the decree sought to be restrained is one affecting the first respondent only and that therefore, as regards this writ petition is WPC 1231/09 2 concerned, notice to respondents 2 and 3 be dispensed with. Hence, notice to respondents 2 and 3 is dispensed with. Service is, thus, complete. 3. Apart from resisting the writ petition on facts, counsel for the first respondent points out that no injunction at all could be granted by the Munsiff's Court in O.S.No.300/05, as execution of the decree in O.S.No.104/01 was also in that Munsiff's Court itself, as under Section 41B of the Specific Relief Act, an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which injunction is sought for. In the instant case, execution sale and delivery of the property are all by the Munsiff's Court, Chittur in O.S.No.104/01 and the suit O.S. No.300/05, wherein, injunction is sought for, restraining the proceedings in O.S.No.104/01, is also filed before the same court. Hence, the trial court could not have granted any injunction and consequently, the appellate court also could not WPC 1231/09 3 grant the relief which the trial court could not grant and consequently, there is no merit in this writ petition assailing the concurrent findings of the courts below. The petitioner/plaintiff is, therefore, not entitled for an interim order of injunction restraining delivery being got effected by the first respondent/decree holder in O.S.No. 104/01. 4. Further, it is pointed out by counsel for the first respondent that the first respondent took up the matter before this Court earlier filing W.P. (C)No.3551/06 when the execution court passed an order on the application filed by the petitioner under Order XXI Rule 29 CPC in O.S.No.104/01 staying the execution and he has produced before me a copy of the judgment dated 5.10.2006 in W.P.(C) No.3551/06 aforesaid. In paragraph 6 of the said judgment, this Court made observations against the claim of the present petitioner and I extract paragraph 6 of the said judgment without making any further observations regarding the contentions of WPC 1231/09 4 the counsel for the petitioner. Paragraph 6 of the said judgment reads as follows: “The facts of the case reveal that respondent filed an application under Order XXI Rule 90 to set aside the sale. It was in vain. She thereafter filed application under Order IX Rule 13 to set aside the decree. It was also dismissed. Though an appeal was filed, under Exhibit P3 order, learned District Judge dismissed the same finding that it is a case where compensatory cost should have been granted, though it was not granted. It is thereafter respondent filed the suit. The question whether respondent has a prima facie case and petitioner herein is to be restrained from taking delivery of the property is the matter that is to be decided by the Munsiff in O.S.No.300/05. In spite of application filed under Order XXXIX Rule 1 of the Code, the Munsiff did not grant an order in his favour. Evidently, prima facie case and balance of convenience were not in favour of the respondent. In such circumstances, the executing court should not have stayed the proceedings initiated by the petitioner to take delivery of the property holding that the question whether respondent has a prima facie case has to be decided only by the court where the suit is WPC 1231/09 5 pending and not by the court considering an application under Rule 29. If execution proceedings are to be stayed under Rule 29, as has been done by the court below, any judgment debtor can institute a suit alleging fraud against a valid decree obtained by the decree holder and then approach the executing court to stay the execution contending that whether judgment debtor has a prima facie case and whether there is any likelihood of success in the suit are matters not to be decided by the executing court, but by the court where the suit is pending. That is not the scope or ambit of Rule 29. The court below did not exercise the discretion vested in it with care or caution. Instead it was exercising on flimsy and unsustainable grounds. Exhibit P8 order is, therefore, quashed. Executing Court is directed to proceed with the execution petition expeditiously.” It is further pointed out by counsel for the first respondent that petition under Order XXI Rule 29 CPC before the Munsiff's Court on the execution side in O.S.No.104/01 has been filed by the petitioner, who filed a joint vakalath along with the second respondent; that such a petitioner WPC 1231/09 6 cannot be heard to contend that there is collusion among the respondents and that the allegations are not bona fide. 5. I have gone through the concurrent orders of the courts below and am convinced that the courts below have considered the contentions in the proper perspective and have rightly dismissed the injunction petition, as no prima facie case is established. There is absolutely no merit in this writ petition. If at all the petitioner is to succeed in O.S.No.300/05 on the file of the Munsiff's Court, Chittur, the remedy open to her is to have restitution by getting back possession of the property delivered over to the first respondent. Thus, no irreparable injury is to be caused to the petitioner and balance of convenience also is not in her favour. This writ petition is dismissed. 19th January, 2009 (K.P.Balachandran, Judge) tkv