IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 WP(C).No. 2601 of 2010(O) ------------------------------------- [OS.NO.421/2005 OF MUNSIFF'S COURT, VAIKOM] .................... PETITIONER: ------------------- P.V.RAJENDRA PRASAD, AGED 55, S/O.,P.K.VAVA, PERUMPALLICHIRA VEEDU, PADIJARCKARA P.O, NADUVILE VILLAGE, VAIKOM TALUK, KOTTAYAM. BY ADV. SRI.P.CHANDY JOSEPH. RESPONDENT: ---------------------- M.K.CHERIAN, AGED 63, VALEMADATHIL VEETTIL, VADAKKEMURI VILLAGE, VAIKKAPRAYAR KARA, VAIKOM TALUK. BY ADV. SRI.C.K.KARUNAKARAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/07/2011, ALONG WITH W.P(C). NO. 2612 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.2601/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE INDIGENT O.P. FILED BY THE CHANDRACHOODAN AND ANOTHER AS O.P.NO.07/2007 AGAINST THE PETITIONER AND ANOTHER BEFORE THE SUB COURT, KOTTAYAM. EXT.P.2: COPY OF THE EXECUTION PETITION DTD. 06/11/2009 FILED BY THE RESPONDENT AS E.P.NO.325/2009. EXT.P.3: COPY OF THE OBJECTION DTD. 07/01/2010 FILED BY THE PETITIONER TO THE EXECUTION PETITION. EXT.P.4: COPY OF THE ENCUMBRANCE PRODUCED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, VAIKOM. EXT.P.5: COPY OF THE B-DIARY SHOWING THE PROCEEDINGS IN THE ABOVE EXECUTION PETITIONS. EXT.P.6: COPY OF THE ATTACHMENT ORDER ISSUED BY THE SUB REGISTRAR, VAIKOM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) Nos.2601 of 2010 & 2612 of 2010 -------------------------------------- Dated this the 25th day of July, 2011. JUDGMENT Petitioner, common in both the cases is the judgment debtor in O.S.Nos.421 of 2005 and 115 of 2005, respectively of the court of learned Munsiff, Vaikom. Respondents obtained decrees for recovery of money. When the property of petitioner was brought up for sale in execution of the above decrees, petitioner approached this Court with these petitions under Article 227 of the Constitution challenging the execution proceeding. This Court at the time of admission of the petitions directed petitioner to deposit `65,000/- in O.S.No.421 of 2005 and `75,000/- in O.S.No.115 of 2005 within fortyfive days. Learned counsel submits that accordingly the said amount was deposited. In the meantime, as the learned counsel submits, the entire claim of respondents was satisfied by payment of the amount outside court and thereon respondents filed full satisfaction memo in both the cases. In the circumstances the amount deposited as per order of this Court is to be refunded to the petitioner. Learned counsel submits that on the request of petitioner, attachment in both the cases has been lifted and intimation has been given to the Sub Registrar as per Ext.P6 WP(C) Nos.2601/2010 & 2612/2010 2 (in both the cases). Petitioner has filed I.A.Nos.10480 of 2011 and 10481 of 2011 in these petitions requesting that a direction may be given to the learned Munsiff to refund the amount deposited in that court. 2. Now that according to the petitioner the entire matter has been settled, it is not necessary to continue this proceedings in challenge of steps taken for sale of the property. What remains is only whether this Court should issue direction to the learned Munsiff to disburse the amount to the petitioner as prayed for in I.A.Nos.10480 of 2011 and 10481 of 2011. Since respondents are not before me it is not possible to decide in this proceeding whether the amount in deposit is due to the respondents or refundable to the petitioner. The appropriate course open to the petitioner is to move appropriate application before learned Munsiff, Vaikom requesting to refund the amount deposited and if any such application is preferred learned Munsiff shall pass orders thereon after hearing the respondents as well. Resultantly these Petitions are disposed of in the following lines: i. Petitioner is permitted to move appropriate application in O.S.Nos.115 of 2005 and 421 of 2005 before learned Munsiff, Vaikom requesting for refund of the amount (said to be) deposited pursuant to the order of this Court. WP(C) Nos.2601/2010 & 2612/2010 3 ii. If any such application is preferred learned Munsiff shall pass appropriate orders on the said application after giving notice to the respondents also. THOMAS P.JOSEPH, Judge. cks