IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4742 of 2010(O)
1. JOHN VICTOR
... Petitioner
Vs
1. GOPINATHAN
... Respondent
For Petitioner :SRI.G.P.SHINOD
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :15/02/2010
O R D E R
P. BHAVADASAN, J.
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W.P.(C) No. 4742 of 2010
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Dated this the 15th day of February, 2010
JUDGMENT
This is a petition filed under Article 227 of the
Constitution of India seeking to have Exts.P6, P8 and P9 set
aside. Further, the petitioner also seeks to have all further
proceedings in E.P. No.349 of 2002 in O.S. No.836 of 2001 on
the file of Court of the First Addl. Munsiff, Neyyattinkara till final
disposal of O.S.No.758 of 2008 pending before that court stayed.
Decree was passed in favour of the respondent, entitling to
realize Rs.57,000/- from the petitioner with future interest at
12% per annum on Rs.50,000/- . Copy of the E.P. No.349 of 2002
on the file of the Court of the First Addl. Munsiff, Neyyattinkara
is produced as Ext.P1. The petitioner stated that he had already
discharged the debt due to the decree holder. It is also stated
that the decree holder, on receipt of the amount, issued a receipt
on 25-3-2002. It is for the said amount the Execution Petition
was instituted.
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2. On receipt of the notice in the Execution Petition, the
petitioner entered appearance before the court below and filed
objection to the effect that the decree debt has already been
satisfied. Later, the petitioner filed E.A. No.87 of 2007 under
Order XXI Rule 2 of the Code of Civil Procedure and E.A. No.111
of 2007 to send Ext.P2 receipt for Expert opinion. Both the
applications were dismissed by the court below by a common
order, that was challenged before this Court by filing W.P.(C)
No.25991 of 2008. This Court by Ext.P3 judgment dismissed the
petition, observing that the order will not dis-entitle the
petitioner to claim the amount from the decree holder by
separate proceedings.
3.Soon thereafter, the petitioner filed O.S. No.758 of 2008
before the Munsiff’s Court praying for a declaration that the
payment of Rs.50,000/- to the respondent on 23-5-2002 was
towards the decree debt in O.S. No.836 of 2001 or in the
alternative for realization of the said amount with interest. Copy
of the plaint is produced as Ext.P4. The said suit is pending. In
the meanwhile, the decree holder initiated execution
proceedings and that causes prejudice to the petitioner,
according to the petitioner. The petitioner moved the court
W.P.(C) No. 4742/10 3
below under Order XXI rule 19 of the Code of Civil Procedure to
stay lower court proceedings till the suit is disposed of. That was
dismissed. The petitioner contendeds that the court below ought
to have allowed Ext.P5 petition and stayed all proceedings in
E.P. No.349 of 2002.
4. I find no merit in the above contention. The claim is
under Order XXI rule 19 of the Code of Civil Procedure. If the
petitioner has a case that he paid the amount towards the
decree, it is only proper for him to recover the money by way of
separate proceedings, since there is no certification of the
payment alleged to have been made by him. He has resorted to
that remedy. Therefore, the prayer for stay of E.P.No.349 of2002
does not arise for consideration. However, it is pointed out by
the learned counsel for the petitioner that the court below
without adverting to any of the objections raised by the
petitioner ordered settling of proclamation and hence till final
disposal of E.P. No.349 of 2009 all proceedings may be kept in
abeyance.
5. Considering the facts and circumstances of the case,
the court below is directed to consider objection to E.P. No.349
of 2009 filed by the petitioner and proceed in accordance with
W.P.(C) No. 4742/10 4
law. Till then, all further proceedings pursuant to Ext.P9 shall be
kept in abeyance.
The writ petition is disposed of as above.
P.BHAVADASAN, JUDGE.
mn.