IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4097 of 2009(K)
1. P.K.VASU, S/O.KORAN, AGED 45 YEARS
... Petitioner
Vs
1. THE SECRETARY
... Respondent
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent :SRI.NAGARAJ NARAYANAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated :17/03/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C) NO. 4097 OF 2009 K
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Dated this the 17th March, 2009
JUDGMENT
The judgment debtor in E.P.No.88 of 2004 in ARC.No.313 of 2002,
on the file of the Court of the Munsiff-Magistrate of Pattambi, has filed this
Writ Petition challenging Ext.P5 order dated 31.1.2009, by which, the
court below dismissed the application filed by the petitioner under Order
XXI Rule 90 of the Code of Civil Procedure. It was contended that the
application was being prosecuted under Section 47 of the Code of Civil
Procedure though in the application it is mentioned as Order XXI Rule 90
of the Code of Civil Procedure. Learned counsel for the petitioner
submitted that, therefore, a Writ Petition is maintainable. Though the
remedy of the petitioner is to file a Civil Revision Petition, I am not
dismissing the Writ Petition, for the following reasons.
2. When the Writ Petition came up for admission on 6.2.2009, an
interim order was passed, which reads as follows:
“Admit. Issue notice.
The Writ Petition is admitted only for the purpose of
enabling the petitioner to pay off the decree debt and to
salvage the property, provided the respondent agrees for
receiving the amount. It is doubtful whether the Writ Petition
W.P.(C) NO.4097 OF 2009
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itself is maintainable since the application was pressed only
under Section 47 of the Code of Civil Procedure and since a
revision lies against an order under Section 47. However, in
view of the submission made by the learned counsel for the
petitioner that the petitioner who belongs to scheduled caste
and who is a coolie will lose his residential property if the
Writ Petition is not entertained, the Writ Petition is being
entertained only for the limited purpose mentioned above.
There will be an interim stay of delivery of the property
for a period of one month. Urgent notice to the respondent
by speed post.”
3. Learned counsel appearing for the parties submitted that the
matter has been settled between the parties and that in full and final
settlement of all the dues to the respondent Bank, the petitioner has paid
the necessary amount arrived at on settlement. In view of the payment to
the satisfaction of the decree holder, it is agreed that the respondent will
execute necessary assignment deed transferring the property in favour of
the petitioner at the expense of the petitioner.
The Writ Petition is disposed of recording the above submissions.
(K.T.SANKARAN)
Judge
ahz/