IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 303 of 2010(O)
1. CICILY, AGED 57 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. ALWAYE MUNICIPALITY, REPRESENTED
For Petitioner :SRI.K.SHRIHARI RAO
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/10/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.303 of 2010
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Dated this 13th day of October, 2010
JUDGMENT
This petition is in challenge of Ext.P4, order dated December
6, 2008 in an unnumbered execution petition in LA.R.No.78 of 1984
of the court of learned Additional Sub Judge, North Paravur.
Petitioner filed an application for issue of cheque for Rs.2,89,157/-
but the executing court found that petitioner is not entitled to that
much amount in view of the order passed by the court in the same
proceeding in C.A.No.158 of 2001-02 in E.P.No.292 of 1999 on
29-10-2001 holding that of the amount deposited, entitlement of
petitioner was to get only Rs.1,40,952/-. Order dated December 6,
2008 is under challenge in this petition. Learned counsel states
that petitioner is entitled to adjust the amount deposited towards
interest and cost and then towards the principal in which case
petitioner is entitled to get the entire amount deposited. Learned
counsel for respondent No.2 contends that principle of res judicata
would apply to the different stages of same proceedings and that so
far as order dated 29-10-2001 is not challenged and has become
final, executing court could not have entertained the present
application which in effect would amount to a review of the order
O.P(C).No.303 of 2010
: 2 :
dated 29-10-2001.
2. It is not disputed by learned counsel for petitioner that
an adverse order was passed in the same matter on 29-10-2001 and
that order has become final. In that situation, the present
application for cheque cannot be sustained. Executing court cannot
be faulted for taking the view that in view of the order dated 29-10-
2001 which has become final, it cannot go behind that order.
This petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-