Allowed

K.Sudheesan v. Sunilkumar

Kerala HC13 Jan 2016OP(C)/1563/2015

Case brief

AI extract

What is this about?

Court allowed original petition setting aside order returning fixed deposit receipts held as security for decree performance. Directed executing court to realize amounts from bank to satisfy decree. Held attachment unnecessary when receipts were in court custody under CPC Order 21 Rule 51.

What did the court decide?

Impugned order set aside; executing court directed to send amounts covered by fixed deposit receipts to decree holder.

K.Sudheesan Vs Sunilkumar — Execution and Attachment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937

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OP(C).No. 1563 of 2015 (O)

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--------------------------(EA.NO.39/2014 IN EP.NO.43/2014 IN OS.NO.347/2001 OF MUNSIFF COURT, KAYAMKULAM)

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ORIGINAL PETITIONER/COUNTER PETITIONER/DECREE HOLDER:

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K.SUDHEESAN, VIRUDIYATH, ERUVA MURI, PATHIYOOR VILLAGE.

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BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)

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SRI.A.R.DILEEP

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SRI.MANU SEBASTIAN SMT.PARVATHY NAIR

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RESPONDENT :

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SUNILKUMAR, LEKSHMI BHAVANATHIL, KANDALLOOR THEKKUM MURI, KANDALLOOR- 690 535.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 1563 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1. COPY OF DECREE DATED 1.1.08 IN OS.NO.347/01 MUNSIFFS COURT, KAYAMKULAM.

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EXHIBIT P2. COPY OF THE SECURITY BOND IN FORM NO.2 OF APPENDIX G OF THE FIRST SCHEDULE OF CPC.

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EXHIBIT P3. COPY OF THE DECREE DATED 4.11.13 IN AS.NO.94/08 OF THE ADDITIONAL DISTRICT COURT -II, MAVELIKKARA.

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EXHIBIT P4. COPY OF EP NO.43/14 IN OS.NO. 347/01 MUNSIFFS COURT, KAYAMKULAM.

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EXHIBIT P5. COPY OF OBJECTION FILED BY THE RESPONDENT.

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EXHIBIT P6. COPY OF EA.NO. 39/14 IN OS.NO.347/01 MUNSIFFS COURT, KAYAMKULAM.

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EXHIBIT P7. COPY OF OBJECTION FILED BY THE PETITIONER.

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EXHIBIT P8. COPY OF ORDER DATED 22.6.15 IN EA.NO. 39/14 IN EP.NO. 43/14 IN OS.NO. 347/01 MUNSIFFS COURT, KAYAMKULAM.

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K.ABRAHAM MATHEW, J.

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O.P.(C). No.1563 of 2015

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Dated this the 13^th day of January, 2016

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JUDGMENT

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Petitioner is the decree holder in a suit for money. The decree

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was challenged in appeal. The appellate court stayed execution of the decree on condition that the respondent/judgment debtor furnished security for the performance of the decree. Accordingly the respondent produced before the executing court fixed deposit receipts for a certain amount issued by a bank as security. The appeal was later dismissed. Thereupon, the petitioner filed Ext P4 execution petition requesting the court to send for the amounts covered by the fixed deposit receipts. The respondent filed an application to return the receipts. By Ext P8 order the court allowed the respondent's application and ordered return of the fixed deposit receipts to the respondent stating that the appeal was disposed of and the amount has not been attached.

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Heard.

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The respondent produced fixed deposit receipts issued by a

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bank pursuant to the orders passed by the appellate court as a condition for staying execution of the decree. Order 41 Rule 5(3)(c)

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O.P.(C). No.1563 of 2015 2

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C.P.C provides that no order of stay of execution shall be made under

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sub rule 1 or sub rule 2 unless the court making it is satisfied that security has been given by the applicant for due performance of such decree or order as may ultimately be binding upon him. It is not for due prosecution of the appeal security is furnished, but for due performance of the decree. The property will be held as security for the performance of the decree. Till the decree is performed, the security bond cannot be

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cancelled. It will continue to be in force till the decree is executed. It was illegal for the learned Munsiff to order return of the fixed deposit receipts produced by the respondent as security for the performance of the decree.

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The executing court also took the view that the petitioner failed to attach the fixed deposit receipts and so the respondent has every right to get them back. The question is whether attachment was necessary. The fixed deposit receipts were before the court. They were produced in the case in which the decree is sought to be executed. Order 21 Rule 51 C.P.C is applicable only where the property is a negotiable instrument not deposited in court nor in the custody of a public officer. In other cases attachment of the negotiable instrument is not necessary. In this case, as the fixed deposit receipts were produced in the case in which the decree is sought to be executed,

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O.P.(C). No.1563 of 2015 3

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attachment was unnecessary.

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The next question falling for consideration is how without attachment the amount covered by the fixed deposit receipts can be realised by the court. Section 51 C.P.C empowers the court to execute a decree in such manner as the nature of the relief granted may require. It was sufficient for the court to direct the bank to send to it the amounts covered by the fixed deposit receipts. It was for that purpose only the petitioner filed the execution petition. The executing court went wrong in rejecting the prayer. The order is liable to be set aside.

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In the result, this O.P is allowed. The impugned order is set aside. The executing court is directed to send for the amounts covered by the fixed deposit receipts and allow the petitioner to withdraw it or the part of it which is sufficient to satisfy his decree.

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K.ABRAHAM MATHEW JUDGE

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K.Sudheesan v. Sunilkumar

Case brief

What is this about?

What did the court decide?

K.Sudheesan v. Sunilkumar

Case brief

What is this about?

What did the court decide?

What the court decided

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