Original petition filed by decree holder to withdraw deposited judgment debt. Court held decree holder not entitled as money belonged to judgment debtor as security. Petition dismissed.
Original petition dismissed. Applicant not entitled to withdraw deposited amount.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
MONDAY, THE 1ST DAY OF FEBRUARY 2016/12TH MAGHA, 1937
OP(C).No. 241 of 2016 (O)
E.A. NO.587/2015 IN E.A. NO.551/2015 IN E.P. NO.7/2000 IN O.S. NO.35/1997 OF PRINCIPAL SUB COURT, PALAKKAD.
PETITIONER(S):
K. SAINABA, W/O.LATE A.K. RAFEEK SHA, AGED 52 YEARS, PROPRIETRESS, C.A.K. TEXTILES, MAIN ROAD, ALATHUR -678 541, PALAKKAD DISTRICT.
BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR, SRI.GEEN T.MATHEW.
RESPONDENT(S):
THE DHANALAKSHMI BANK LTD., PERINKULAM BRANCH, REP. BY ITS BRANCH MANAGER.
BY SRI.VIVEK VARGHESE P.J., SC.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
OP(C).No. 241 of 2016 (O)
APPENDIX
PETITIONER'S EXHIBITS:-
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
K.ABRAHAM MATHEW J.
O.P.(C)No.241 of 2016
Dated this the 1st day of February, 2016
JUDGMENT
Petitioner filed O.S.No.35 of 1997 of Sub Court, Palakkad against the respondent for recovery of certain amount as damages. The suit was decreed allowing her to realise from the respondents Rs.1,53,000/- with interest at 12% per annum from the date of suit till the date of decree and thereafter at 6% per annum and proportionate costs. The petitioner filed E.P.No.7 of 2000 to realise the amount. To the amin deputed to attach the properties of the respondent, it handed over to him a cheque for the amount due under the decree drawn in favour of the Sub Judge. Meanwhile, the respondent filed an appeal and obtained a stay of paying the amount to the petitioner. The amount was deposited first with the respondent bank itself and thereafter with a nationalized bank. The appeal was dismissed. The principal amount deposited with the bank and the interest accrued on it came to Rs.6,22,026/-. The petitioner filed an application to allow her to withdraw this amount. The respondent filed an objection stating that the petitioner is entitled only to the amount payable under the decree, which came to only Rs.3,61,976/- including costs on the trial side and in the execution proceedings. The respondent filed an application to withdraw the amount which is in excess of the amount payable
O.P.(C)No.241 of 2016 2
under the decree. The executing court dismissed the petitioner's application and allowed the respondent. This is challenged.
1047) in which the following observation has been made.
“On principle, it appears to us that the facts of a judgment debtor's depositing a sum in court to purchase peace by way of stay of execution of the decree on terms that the decree holder can draw it out on furnishing security, does not pass title to the money to the decree holder. He can if he likes take the money out in terms of the order, but so long as he does not do it, there is nothing to prevent the judgment debtor from taking it out by furnishing other security, say, of immovable property, if the court allows him to do so and on his losing the appeal putting the decretal amount in court in terms of O.21 R.1 C.P.C in satisfaction of the decree”.
the amount deposited with the bank. She could have realised the
O.P.(C)No.241 of 2016 3
amount due to her out of that amount. The learned Sub Judge rightly dismissed her application and allowed the respondent's. No interference is called for.
In the result, this Original Petition is dismissed.
Sd/-
K.ABRAHAM MATHEW
JUDGE
cms
/True copy/ P.S.to Judge
2 issues framed by the court
Whether the decree holder in an execution proceeding is entitled to withdraw money deposited by the judgment debtor in court before it was officially in her name.
Whether the deposited amount belonged to the judgment debtor as security until the decree holder actually withdrew it.
Colour shows how this judgement treated each authority
P.S.L.Ramanathan Chettiar and others v. O.R.M.P.R. Ramanathan ChettiarExplained¶37
P.S.L.Ramanathan Chettiar and others v. O.R.M.P.R. Ramanathan Chettiar (AIR 1968 SC 1047) · Who else cites this
K. Sainaba
The Dhanalakshmi Bank Ltd., Perinkulam Branch
K. Abraham Mathew
As recorded by the court registry
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