Partly allowed

Viswa Mohan Das v. a. Najeeb

Kerala HC13 Nov 2023OP(C)/2042/2023

Case brief

AI extract

What is this about?

Allowed an original civil petition challenging a District Court order conditioning the stay of execution proceedings on depositing 50% of the decree amount. The Court held that such a direction is unreasonable and inequitable when the debt is already secured by attachment before judgment, and modified the order to remove the deposit condition.

What did the court decide?

Modified the impugned Ext.P6 order to sustain the stay of further proceedings while doing away with the condition directing the petitioner to deposit 50% of the decree amount.

Viswa Mohan Das Vs a. Najeeb — Execution and Attachment | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

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MONDAY, THE 13TH DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945
OP(C) NO. 2042 OF 2023

¶5

AGAINST THE ORDER DATED 25.08.2023 IN I.A. NO.02/2022 IN
A.S.NO.56/2022 OF THE ADDITIONAL DISTRICT JUDGE-VI, KOLLAM,

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IN O.S. NO.82/2018 OF THE ADDITIONAL SUB COURT,KOLLAM

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DATED 31.08.2022

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ORIGINAL PETITIONER/PETITIONER-APPELLANT:

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VISWA MOHAN DAS

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AGED 47 YEARS, S/O YESUDASAN, RESIDING AT VISWA
MANDIRAM, CANTONMENT SOUTH WARD, BEACH ROAD,
KOLLAM P.O, KOLLAM EAST VILLAGE, KOLLAM TALUK,
KOLLAM, PIN – 691001.

¶11

BY ADV A.JANI(KOLLAM)

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RESPONDENT/COUNTER PETITIONER-RESPONDENT:

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A. NAJEEB

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AGED 46 YEARS, S/O ABDUL SHEREEF, SAJEENA, MEKONE
JUNCTION, CHANDANATHOPE P.O, KOTTAMKARA VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT, PIN – 691004.

¶15

BY ADVS.
SAJU J PANICKER
KURIAN K JOSE(K/001510/2019)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2023,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C).NO.2042 OF 2023

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..2..

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J U D G M E N T

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Dated this the 13thday of November, 2023

¶22

The defendant in O.S. No.82/2022 of the Additional
Sub Court, Kollam, is the petitioner herein. He is
aggrieved by Ext.P6 order. The suit was decreed
against the petitioner herein, whereupon he carried
an appeal, A.S. No.56/2022, before the Additional
District Court-VI, Kollam and filed a petition,
seeking stay of all further proceedings in E.P.
No.62/2023, in execution of the said judgment and
decree. The same was allowed by the learned
District Judge, but on condition that the
petitioner deposits 50% of the decree amount within
three months from the date of Ext.P6 order. The
short grievance of the petitioner is that, the
petitioner’s property, having an extent of

¶23

O.P.(C).NO.2042 OF 2023

¶24

..3..

¶25

8.58 ares, had already been attached before
judgment, so as to secure the money covered by the
judgment and decree impugned in the appeal. Hence,
there is no necessity to direct deposit of any
portion of the decretal amount, is the submission
made.

¶26

2.Having heard the learned counsel appearing on
both sides, this Court is inclined to allow the
original petition. This Court endorses the
submission made by the learned counsel for the
petitioner that, once the decree debt is secured by
virtue of an attachment before judgment of the
property of the defendant, a further direction to
pay 50% of the decretal amount, as a pre-condition
for grant of stay of further proceedings in the
E.P., is unreasonable, harsh and inequitable.

¶27

3. In the circumstances, Ext.P6 order is modified,

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O.P.(C).NO.2042 OF 2023

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..4..

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sustaining the stay granted, but doing away with
the condition directing deposit of 50% of the
decree amount.

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The Original Petition is disposed of as above.

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 Sd/-

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C. JAYACHANDRAN
JUDGE

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Skk//18.11.2023

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O.P.(C).NO.2042 OF 2023

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..5..

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APPENDIX OF OP(C) NO.2042/2023

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PETITIONER’S EXHIBITS:-

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`EXHIBIT P1`	`TRUE COPY OF JUDGEMENT DATED 31/08/2022` `IN O.S.NO 82/2018 OF THE ADDL: SUB` `COURT. KOLLAM`
`EXHIBIT P2`	`A TRUE COPY OF THE ATTACHMENT REPORT` `DATED 14/0/2019 IN IA NO 1424/2018 IN` `O.S.NO 82/2018 OF THE ADDL SUB COURT,` `KOLLAM`
`EXHIBIT P3`	`A TRUE COPY OF THE APPEAL MEMORANDUM` `DATED 17/11/2022 IN A.S. NO. 56 OF 2022` `BEFORE THE DISTRICT COURT, KOLLAM`
`EXHIBIT P4`	`A TRUE COPY OF THE STAY PETITION DATED` `17/11/2022 I.A NO. 2 OF 2022 IN A.S. NO.` `56 OF 2022 BEFORE THE DISTRICT COURT,` `KOLLAM`
`EXHIBIT P5`	`TRUE COPY OF OBJECTION I.A NO. 2 OF 2022` `IN A.S. NO. 56 OF 2022 BEFORE THE` `DISTRICT COURT, KOLLAM`
`EXHIBIT P6`	`TRUE COPY OF ORDER DATED 25/08/2023 IN` `I.A NO. 2 OF 2022 IN A.S. NO. 56 OF 2022` `BEFORE THE DISTRICT COURT, KOLLAM`

Viswa Mohan Das v. a. Najeeb

Case brief

What is this about?

What did the court decide?

Viswa Mohan Das v. a. Najeeb

Case brief

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