IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 OP(C).No. 84 of 2011(O) ----------------------- (EP NO.254/08 OF SUB COURT, MANJERI.) ------------------ PETITIONER -------------------- NAZREENA, W/O.FIROZ KHAN, PALEMPADIYAN AMBALAPARAMBIL HOUSE, KOOTTILANGADY AMSOM AND VALLIKKAPATTA DESOM OF PERINTHALMANNA TALUK, POST VALLIKKAPATTA, MALAPPURAM DISTRICT. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT/PETITIONER IN EP: -------------------------------------------------- 1. THE SECRETARY, PERINTHALMANNA SERVICE CO-OPERATIVE BANK, PERINTHALMANNA, PERINTHALMANNA (POST), MALAPPURAM DISTRICT, PIN 679322. 2. JAFFARKHAN, S/O.MUHAMMED, PALEMPADIYAN AMBALAPARAMBIL HOUSE, KOOTTILANGADY AMSOM AND VALLIKKAPATTA DESOM OF PERINTHALMANNA TALUK, POST VALLIKKAPATTA, MALAPPURAM DISTRICT, PIN 679320. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK K.T.SANKARAN, J. ------------------------------ O.P(C).No.84 OF 2011 ------------------------------ Dated this the 20 th day of January, 2011 JUDGMENT The Executing Court, in EP No.254 of 2008 on the file of the Court of the Subordinate Judge of Manjeri, passed an order dated 6.1.2011 directing detention of the judgment debtor in civil prison. The judgment debtor was taken to jail. His wife filed this Original Petition challenging the order passed by the Executing Court. An order for release of the petitioner's husband from civil prison was also sought for. 2. When the Original Petition came up for admission on 7 th January, 2011, the following order was passed: “This Original Petition is filed by the wife of Firoz Khan, second judgment debtor in EP No.254 of 2008 in ARC No.195 of 2005 on the file of the Court of Subordinate Judge, Manjeri. Firoz Khan was arrested in execution of the decree and he was detained in Civil Prison. It is stated that he is undergoing detention. This Original Petition is filed by the wife of O.P(C).No.84 OF 2011 2 Firoz Khan, challenging the order dated 5.1.2011 in the Execution Petition. It is stated that Firoz Khan could not file Original Petition as he was detained. 2. The learned counsel for the petitioner submitted that the petitioner is prepared to deposit Rs.One lakh as an interim measure for the release of her husband. There will be an interim order directing release of Firoz Khan from jail, on condition that the petitioner shall deposit a sum of Rs.1,50,000/-. On such deposit, the Executing Court shall pass orders releasing Firoz Khan from jail. The petitioner shall execute a bond before the Executing Court for due payment of the decree amount, on failure of Firoz Khan to pay the decree amount. The bond shall be executed before issuing the releasing order. Post the Original Petition on 20th January, 2011.” 3. It is submitted by the learned counsel for the petitioner that a sum of Rs.1,50,000/- was deposited and the bond was executed as directed in the interim order. 4. The Original Petition is not admitted. Therefore, there is no appearance for the respondents. Today, the learned counsel for the O.P(C).No.84 OF 2011 3 petitioner submitted that the Original Petition is not pressed. 5. The request for not pressing the Original Petition should not result in the release of the judgment debtor only on the condition mentioned in the order dated 7 th January, 2011. That order was only to facilitate the judgment debtor to comply with the decree and order of the court. The order for release, as per the interim order passed by this court, is only a temporary release and it is always subject to the order passed by the Executing Court ordering detention of the husband of the petitioner in jail. The learned counsel for the petitioner submitted that the husband of the petitioner intends to challenge the order passed by the Executing Court and it is for that purpose the Original Petition is sought to be withdrawn. 6. Making it clear that the order passed by the Executing Court is not interfered with, except for O.P(C).No.84 OF 2011 4 the temporary release of the judgment debtor, the Original petition is permitted to be withdrawn, without prejudice to the right of the judgment debtor to challenge the order passed by the Executing Court. In other words, the order passed by the Executing Court is not interfered with at all except for the limited purpose of affording an opportunity to the judgment debtor to comply with the decree. The Original Petition is, accordingly, dismissed as withdrawn, with the above observations. The registry will communicate this judgment to the Sub Court, Manjeri. K.T.SANKARAN, JUDGE. cms O.P(C).No.84 OF 2011 5 O.P(C).No.84 OF 2011 6 K.T.SANKARAN, J. ------------------------------ O.P(C).No.84 OF 2011 ------------------------------ Dated this the 7 th day of January, 2011 ORDER This Original Petition is filed by the wife of Firoz Khan, second judgment debtor in EP No.254 of 2008 in ARC No.195 of 2005 on the file of the Court of Subordinate Judge, Manjeri. Firoz Khan was arrested in execution of the decree and he was detained in Civil Prison. It is stated that he is undergoing detention. This Original Petition is filed by the wife of Firoz Khan, challenging the order dated 5.1.2011 in the Execution Petition. It is stated that Firoz Khan could not file Original Petition as he was detained. 2. The learned counsel for the petitioner submitted that the petitioner is prepared to deposit Rs.One lakh as an interim measure for the O.P(C).No.84 OF 2011 7 release of her husband. There will be an interim order directing release of Firoz Khan from jail, on condition that the petitioner shall deposit a sum of Rs.1,50,000/-. On such deposit, the Executing Court shall pass orders releasing Firoz Khan from jail. The petitioner shall execute a bond before the Executing Court for due payment of the decree amount, on failure of Firoz Khan to pay the decree amount. The bond shall be executed before issuing the releasing order. Post the Original Petition on 20 th January, 2011. K.T.SANKARAN, JUDGE. cms