Kerala High Court
Mustafa vs Abdulla Haji on 10 September, 2015
IN THE HIGH COURT OF KERALAATERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY,THE 20TH DAYOF JANUARY2017/30TH POUSHA, 1938
OP(C).No. 2295 of 2015 (O)
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AGAINST THE ORDER IN I.A. No.725/2015 AND I.A. No.726/2015 IN O.S.No.108/12
DATED 10.09.2015 OF THE SUB COURT,VADAKARA
PETITIONER / PETITIONER / DEFENDANT : -
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MUSTAFA, S/o MOIDU, AGED 48 YEARS,
RESIDING ATKOYLOTH HOUSE,
KUNNAMKODE AMSOM DESOM,
VADAKARA TALUK, KOZHIKODE DISTRICT,
PIN - 673 504,
(REPRESENTED BY THE WIFE AND POWER OF ATTORNEY HOLDER,
RESIDING ATKOYLOTH HOUSE,
KUNNAMKODE AMSOM DESOM, VADAKARA TALUK,
KOZHIKODE DISTRICT)
BY ADVS.SRI.U.P.BALAKRISHNAN
SRI.K.R.AVINASH (KUNNATH)
RESPONDENT / RESPONDENT / PLAINTIFF : -
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ABDULLA HAJI, S/o AHAMMED VALAPPIL,
RESIDING ATVALAPPIL HOUSE,
MUTHUVATATHOOR,
PURAMERI AMSOM DESOM,
VADAKARA TALUK, PIN - 673 503,
KOZHIKODE DISTRICT.
R1 BY ADV.SRI.B.KRISHNAN
R1 BY ADV.SRI.R.PARTHASARATHY
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2017,
THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
OP(C).No. 2295 of 2015 (O)
APPENDIX
PETITIONER'S EXHIBITS :
EXHIBIT P1 : TRUE COPY OF THE ORDER DATED10.09.2015 IN I.A. No.725/2015
AND I.A. No.726/2015 IN O.S. No.108/12 ON THE FILE OF THE SUB
COURT,VATAKARA.
EXHIBIT P2 : TRUE COPY OF THE ORDER OF ATTACHMENT DATED 31.08.2015
OF SUB COURT,VATAKARA.
RESPONDENT'S EXHIBIT : NIL
// TRUE COPY //
P.A.TO JUDGE
DMR/-
P. SOMARAJAN, J.
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O.P.(c) No. 2295 of 2015
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Dated this the 20th day of January, 2017
JUDGMENT
Aggrieved by the order in I.A. No.725/2015 and I.A. No.726/2015 in O.S. No.108/2012 dated 10.09.2015 of Sub Court, Vadakara, the respondent therein came up with this petition under Article 227 of the Constitution of India.
2. Exhibit P1 is the impugned order. The lower court has passed a conditional order setting aside the ex parte decree directing the petitioner to deposit an amount of Rs.3,00,000/- by way of security on or before 28.09.2015 after condoning the delay of 895 days. The only grievance against the impugned order is that the defendant, the petitioner, is not in a position to deposit the amount ordered by the lower court which comes to Rs.3,00,000/-, the amount covered by the cheque involved in the suit. It was also submitted by the petitioner that the very execution of the cheque in question is under challenge, and that the petitioner was away in gulf country as on the date of alleged execution of the cheque.
3. When the matter came up for hearing today, the learned counsel for the respondent submitted that the suit was O.P.(c) No. 2295 of 2015 2 instituted under Order XXXVII CPC, being a suit for recovery of amount due under a bill of exchange. It was further submitted that the lower court has exercised its jurisdiction under Order XXXVIII Rule 4 CPC directing the defendant to deposit the entire amount of Rs.3,00,000/- as security on or before 28.09.2015. Going by Rule 4 of Order XXXVIII the court can pass conditional order by imposing condition as it think fit and reasonable. The principle behind it is to secure the execution of a decree that may be passed in the suit. If that be so, if sufficient security is furnished that would suffice. Hence, the order of the lower court is hereby modified directing the defendant/petitioner to furnish security for an amount of Rs.3,00,000/-instead of depositing an amount of Rs.3,00,000/- in cash within a period of two months from the date of receipt of a copy of this judgment by the lower court, failing which the present application will stand as dismissed. The parties shall appear before the lower court on 31.01.2017. No order as to costs.
P. SOMARAJAN, JUDGE DMR/-