IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28691 of 2008(N)
1. T.CHANDRAN, AGED 67,
... Petitioner
Vs
1. CATHOLIC SYRIAN BANK LTD., FEROKE BRANCH
... Respondent
2. K.BABU, S/O.KARANCHI RAO, N.B.8, AYISHA
3. K.K.MUHAMMEDA,S/O.YAHU, MACHANILAM
For Petitioner :SMT.LATHA PRABHAKARAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :30/09/2008
O R D E R
V. RAMKUMAR, J.
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W.P. (C) No. 28691 of 2008
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Dated : 30-09-2008
JUDGMENT
Petitioner who is the 2nd defendant in O.S. 562 of 1998
on the file of the Principal Munsiff ‘s Court. Kozhikode was
the second respondent in the E.P. filed by the decree
holder bank as E.P. 46 of 2004. The suit ended in an ex
parte decree passed on 23-3-2002 for a sum of Rs. 55,849.
The petitioner who was the 2nd J.D. in the E.P. remained
ex parte. After 132 days he filed Ext.P3 application to set
aside the ex parte order under Order 21 Rule 106 C.P.C.
The said application was accompanied by Ext.P2 petition to
condone the delay of 132 days. Ext.P3 was filed by the
petitioner under Order 21 Rule 106 C.P.C. The executing
court dismissed the delay petition as well as Et.P3 petition.
Aggrieved by the same the petitioner filed C.M. Appeal 82
of 2007 before the District Court, Kozhikode. As per Ext.P9
judgment dated 29-05-2008 the District Judge dismissed
W.P.(C) 28691 of 2008 -:2:-
the appeal as not maintainable. The appeal was dismissed
on the merits as well. It is the said judgment which is
assailed in this Writ Petition filed under Art. 227 of the
Constitution of India.
2. One of the contentions raised by the petitioner’s
counsel is that the alleged amount claimed by the plaintiff
was actually not due since the petitioner had already
remitted the amount in the bank. That was a contention
which was available to the petitioner on the original side
and he having failed to put forward or substantiate the said
contention and having not filed either an appeal from the
ex parte decree or an application to set aside the ex parte
decree under Order 9 R. 13 C.P.C. cannot raise the very
same contention in the execution petition as the same is
barred by res judicata. As per Ext.P1 Execution Petition,
the decree holder has sought personal execution against
the petitioner. The court is yet to consider the same and
personal execution can be ordered only if the conditions
stipulated under Sec. 51 read with Sec. 55 C.P.C. are made
W.P.(C) 28691 of 2008 -:3:-
out. In case the decree holder attempts to prove that the
petitioner has means or has had the means to pay the
decree debt, the petitioner can adduce rebuttal evidence
in the enquiry under Order 21 Rule 40 C.P.C.
This petition is dismissed upholding the order passed
by the courts below.
Dated, this the 30th day of September 2008.
V. RAMKUMAR,
(JUDGE)
ani.