IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).NO. 10583 OF 2010(O) ----------------------------------------- AGAINST THE ORDER DATED 24/02/2010 IN E.P 203/2008 IN ADC.50/2006 OF ADDL.MUNSIFF COURT, ALAPPUZHA .................... PETITIONER(S): ---------------------- PUSHKARAN.V.K., VADA PADIYIL, PUNNAPRA PANCHAYATH, ALAPPUZHA. BY ADV. SRI.A.KRISHNAN RESPONDENT(S): ------------------------- A.ARAVINDAN, ANCHILVEETTIL, PUNNAPRA PANCHAYATH, WARD IX, ALAPPUZHA. ADV. SRI.B.MANIMOHAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE TERMS OF AGREEMENT BEFORE LOK ADALATH DATED 29.07.2006. EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT PROVING MEANS OF THE PETITIONER DATED 10.06.2008. EXHIBIT P3 TRUE COPY OF THE IMPUGNED ORDER OF THE HONOURABLE ADDITIONAL MUNSIFF, ALAPPUZHA IN E.P. NO.203 OF 2008 IN ADALATH CASE NO.50 OF 2006 DATED 24.02.2010. RESPONDENT'S EXHIBITS: --------------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.10583 of 2010 ==================================== Dated this the 4th day of June, 2010 J U D G M E N T Dispute between petitioner and respondent was settled in the Loka Adalat and an award was passed on 29.07.2006. Alleging that petitioner has not complied with the said award respondent launched execution in the court of learned Additional Munsiff, Alappuzha by filing E.P. No.203 of 2008. There was a request to issue notice to the petitioner under Order XXI Rule 37 of the Code of Civil Procedure (for short, “the Code”). Notice was served on petitioner but he did not appear in the court on two occasions. Thereon respondent gave evidence as P.W.1. Acting upon the uncontroverted evidence of respondent executing court found means in favour of respondent. In this Writ Petition filed by petitioner he is challenging Ext.P3, order of the executing court finding his means. Learned counsel contends that the decree itself is not executable in so far as it contains reciprocal promises and that respondent has not fulfilled his part of the promise. It is also contended that petitioner was not given sufficient opportunity to adduce evidence regarding means. Learned counsel for W.P(C) No.10553 of 2010 -: 2 :- respondent would contend that attempt of petitioner is to protract execution of Ext.P1, award. In Ext.P1, award it is stated that parties have settled the dispute and accordingly petitioner was to pay the amount mentioned therein by way of cheques on condition that respondent will give back the stamp paper and revenue stamp paper to the petitioner. Necessarily respondent had to return the said documents to the petitioner before the amount is realised from petitioner. Learned counsel states that respondent is prepared to produce the said documents in the executing court. So far as Ext.P3, order is concerned it is based on the uncontroverted evidence of respondent as P.W.1. Though petitioner was given opportunity to adduce evidence twice he did not do so. Having regard to the circumstances I am inclined to give petitioner an opportunity to adduce evidence on condition that petitioner deposited for payment to the respondent in the executing court Rs.15,000/- within three weeks from this day. Resultantly, Writ Petition is disposed of in the following lines: (i) It is made clear that respondent can proceed with the execution of Ext.P1, award on his producing in the executing court the stamp paper and revenue stamp paper referred to in Ext.P1. W.P(C) No.10553 of 2010 -: 3 :- (ii) Exhibit P3, order will stand set aside on condition that petitioner deposited in the executing court for payment to respondent Rs.15,000/- (Rupees Fifteen thousand only) within three weeks from this day. (iii) In casse of non-compliance of the said condition Ext.P3, order will stand confirmed and on complying with the direction stated in clause (i) above it will be open to the respondent to proceed with execution pursuant to Ext.P3. (iv) It is made clear that the amount already in deposit in the executing court and the amount directed to be deposited by the petitioner as stated in clause (ii) above can be withdrawn by the respondent and adjusted towards the amount due under the decree but only after producing the documents mentioned in Ext.P1 in the executing court. (v) It is made clear that in considering whether petitioner has means the executing court shall not take into account deposits made by petitioner as per order of this Court. THOMAS P. JOSEPH, JUDGE. vsv