IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 WP(C).No.4249 of 2008 (E) --------------------------------- IP.20/2006 of SUB COURT,KOLLAM .................... PETITIONER: --------------- MUHAMMED KUNJU, AGED 55 YEARS, S/O. KADER KUNJU, KALATHUVILAYIL PUTHEN PURAYIL, PALLISSERIKKAL, SASTHAMCOTTA. BY ADV. SRI.R.SATISH KUMAR RESPONDENT: --------------- C. RADHAKRISHNA PILLAI, KOCHUMADATHIL VEEDU, NADUVILAKKARA MURI, THEVALAKKARA VILLAGE, KOLLAM. ADV. SRI.BRIJESH MOHAN FOR R1 SMT.RESMI G. NAIR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.4249 of 2008 (E) APPENDIX PETITIONER'S EXTS:- EXT.P1:- TRUE COPY OF THE I.P. NO.20/06 FILED BY THE PETITIONER BEFORE THE ADDL. SUB COURT, KOLLAM. EXT.P2:- TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.P. NO.20/06. EXT.P3:- TRUE COPY OF THE JUDGMENT DT.13/06/07 IN W.P.C. NO.3554/07 OF THIS HON. COURT. EXT.P4:- TRUE COPY OF THE I.A. NO.3209/07 FILED BY THE PETITIONER IN I.P. NO.20/06 BEFORE THE COURT BELOW. EXT.P5:- TRUE COPY OF THE ORDER DT.11/07/07 IN I.P. NO.20/06 OF THE ADDL. SUB COURT, KOLLAM. ..................... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.4249 of 2008 ------------------------------------------------ Dated this the 14th day of January, 2009 JUDGMENT The petitioner is the sole judgment debtor in O.S.351/01 on the file of the Munsiff's Court, Sasthamcotta. When personal execution was being proceeded against him in E.P.37/04 in the said suit he filed I.P.20/06 before the Sub Court, Kollam evidenced by Ext.P1. The respondent/decree holder filed Ext.P2 objection thereto. The insolvency petition stood posted to enquiry to 10/07/07 ordering no further time. On 09/07/07 the petitioner filed Ext.P4 (I.A.3209/07) to withdraw the said I.P.20/06 with leave to file a fresh insolvency petition alleging that I.P.20/06 filed is not in the proper form and therefore, it is likely to be dismissed by the court. The court below allowed the said I.A. in part in the sense it allowed the petitioner W. P. C. No.4249 of 2008 -2- to withdraw the insolvency petition and directed the petitioner to pay cost of Rs.5,000/- to the respondent within 30 days therefrom and rejected the I.P. with no leave granted to file a fresh insolvency petition. 2. It is worthy to note that when withdrawal of a suit or other proceeding is sought for with leave to file a fresh suit or a fresh proceeding on the same cause of action, either the court will have to grant leave as prayed for or to dismiss the petition. It cannot grant leave to withdraw the suit or the proceeding with no leave to file a fresh suit or petition depriving the party of any further remedy, if at all the court was not inclined to grant leave as granting of leave was not warranted. In the circumstances, the court was to dismiss the prayer to withdraw the suit or other proceedings and not to allow the prayer in W. P. C. No.4249 of 2008 -3- part namely for withdrawal only. Ext.P5 order impugned before me is unsustainable and is set aside and I remand Ext.P4 application to the court below for consideration afresh in the light of the observations made above. The parties are directed to appear in the court below positively on 20/02/09. The petitioner or the respondent can produce a copy of this judgment in the court below sufficiently early so as to enable the court below to expedite the disposal of the proceedings before it. 3. This Writ Petition is thus allowed with the above directions. K.P.BALACHANDRAN, JUDGE kns/-