IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 OP(C).No. 424 of 2010(O) ------------------------ OS.324/2008 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONER: --------------------- PETER, S/O.PALLATH JOSEPH, AGED 67 YEARS, PALLATH HOUSE, METHALA VILLAGE, KODUNGALORE, THRISUR DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS: --------------- 1. THE SOUTH INDIAN BANK, REP. BY ITS BRANCH MANAGER, ELAPPULLY BRANCH, ELAPPULLY, PALAKKAD DISTRICT, PIN-678622. 2. PATTEESWARI S., W/O.THIRUMOORTHY, AGED 32 YEARS, M.G.R.NAGAR, THIRUMOORTHY ROAD, UDUMALPET, COIMBATORE DISTRICT, PIN-642126. 3. THIRUMOORTHY, S/O.PARAMESWARAN, DO. DO. ADV. SRI.GEORGE VARGHESE,SC,SOUTH INDIAN BANK THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.424 of 2010 --------------------------------------- Dated this 22nd day of October, 2010 JUDGMENT Defendant No.3 in O.S.No.324 of 2008 of the court of learned Additional Munsiff, Palakkad is the petitioner. There is an ex parte decree against him for payment of money to respondent No.1/decree holder. The decree was passed by the learned Additional Munsiff, Palakkad but, the decree certificate has been sent to the learned Munsiff, Kodungallur for execution where respondent No.1 has filed E.P.No.739 of 2009. In the meantime petitioner has filed I.A.Nos.1091 and 1092 of 2010 in the court of learned Additional Munsiff, Palakkad to set aside the ex parte decree and to condone the delay. Learned counsel states that on account of non service of notice those applications could not be disposed of. But in the meantime respondent No.1 is proceeding with execution of the decree in the court of learned Munsiff, Kodungallur. Hence this petition for a direction for early disposal of I.A.Nos.1091 and 1092 of 2010 and in the meantime to keep the execution proceedings in abeyance. I have heard learned counsel for respondent No.1 as well. Learned counsel states that the application to set aside the ex parte decree is hopelessly barred by O.P(C).No.424 of 2010 : 2 : limitation. 2. Having heard learned counsel on both sides I think, it is only proper to direct learned Additional Munsiff, Palakkad to dispose of I.A.Nos.1091 and 1092 of 2010 as early as possible if preliminary steps on those applications are completed. In the meantime I am inclined to direct that execution proceeding in the court of learned Munsiff, Kodungallur will stand in abeyance but, subject to conditions. Resultantly this petition is disposed of in the following lines: (i) Learned Additional Munsiff, Palakkad is directed to dispose of I.A.Nos.1091 and 1092 of 2010 in O.S.No.324 of 2008 as early as possible if the preliminary steps on those applications are over. (ii) Execution of decree in O.S.No.324 of 2008 of the court of learned Additional Munsiff, Palakkad (now being executed in E.P.No.739 of 2009 of the court of learned Munsiff, Kodungallur) will stand in abeyance until disposal of I.A.Nos.1091 and 1092 of 2010 subject to the following conditions:- (a) Petitioner shall deposit the entire amount due under the decree as on this day in fixed deposit in the name of respondent No.1 and in that bank for a period of two (2) years and produce the O.P(C).No.424 of 2010 : 3 : fixed deposit receipt in the court of learned Additional Munsiff, Palakkad within a month from this day. (b) In case I.A.Nos.1091 and 1092 of 2010 are dismissed finally by a final order or, the suit is resurrected and later decreed in favour of respondent No.1 and against the petitioner, it will be open to respondent No.1 to adjust the amount in deposit towards amount due under the decree. (c) It will be open to the learned Additional Munsiff, Palakkad if circumstances warranted, to direct renewal of the fixed deposit for such period further as learned Additional Munsiff deems it proper on expiry of the period fixed hereby. (THOMAS P JOSEPH, JUDGE) Sbna/-