JUDGMENT

Dated this the 1st day of February 2021 The petitioner herein suffered an ex-parte decree in OS.No.360/2014 on the file of the Munsiff Court, Perumbavoor. The respondent/plaintiff was found entitled to realize a sum of Rs.2,62,500/- with 12% interest from 22.12.2010 till the date of the decree and thereafter with 6% interest till its realization. The respondent/plaintiff was also found entitled to costs in the suit.

2. The petitioner filed an application for setting aside the ex-parte decree and an application to condone the delay in filing the application to set aside the ex-parte decree which came to be dismissed. The petitioner therefore preferred CMA.No.2/2020 before the Subordinate Judges Court, Perumbavoor and the same is pending.

3. It appears that certain property of the petitioner was ordered to be conditionally attached in an application for attachment before judgment in OS.No.360/2014. It is submitted that the property which was subject matter of the attachment has subsequently been acquired for the purposes of the Kochi Metro and that an amount of Rs.13,67,769/- under Ext.P9 award and Rs.8,78,274/- under Ext.P10 award have been deposited by the Kochi Metro.

4. The learned counsel submits that since the amount which has been decreed in OS.No.360/2014 is only Rs.2,62,500/- together with interest and costs, no prejudice will caused to the respondent, if the petitioner is permitted to deposit an amount to cover the decree debt on condition that he will be permitted to withdraw the amounts deposited by Kochi Metro towards acquisition cost in respect of the land belonging to the petitioner.

5. The learned counsel for the respondent would however submit that though the petitioner's application for setting aside the ex-parte decree was dismissed by the Munsiff Court, since he has challenged that order by filing an appeal before the Subordinate Judges Court, Perumbavoor and if the ex-parte decree is set aside, the decree will have to be modified as the date of the decree will then change, in which case, he will be entitled to interest at the contractual rate at least till the date of the decree.

Considering the facts and circumstances of the case, I am of the opinion that the petitioner can be permitted to withdraw the amounts deposited as compensation for land acquisition in terms of Exts.P9 and P10 on the petitioner depositing a sum of Rs. 7 lakhs before the Munsiff Court, Perumbavoor (court which passed the decree in OS.No.360/2014). It is suggested by counsel on both sides that the petitioner can be required to make the deposit by opening a Fixed Deposit in a nationalized Bank or in Government Treasury and by producing original of the receipt along with the lien marked in favour of the Munsiff court, Perumbavoor, before that court. It is therefore ordered that if the petitioner makes a deposit of Rs.7 Lakhs either in a Fixed Deposit in a nationalized Bank or before the Government Treasury and produces the receipt together with a lien marked in favour of Munsiff Court Perumbavoor, before that Court, the petitioner will be permitted to withdraw the amounts deposited in his name under Exts.P9 and P10 if necessary by lifting the order of conditional attachment. The petitioner undertakes that the Fixed Deposit will be renewed from time to time until the matter is finally decided by the Munsiff Court or any appellate Court.

The Original Petition will stand disposed of as above.

Sd/-

GOPINATH P.

JUDGE

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APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE PLAINT IN O.S.NO.360/2014 ON THE FILES OF MUNSIFF'S COURT, PERUMBAVOOR DATED 25.8.2014.

EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE ATTACHMENT APPLICATION FILED AS I.A.NO.1955/2014 IN O.S.NO.360/2014 ON THE FILES OF MUNSIFF'S COURT, PERUMBAVOOR DATED 25.8.2014 EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE ATTACHMENT SCHEDULE IN O.S. NO.360/2014 ON THE FILES OF MUNSIFF'S COURT, PERUMBAVOOR DATED

25.8.2014 EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE JUDGMENT IN O.S.NO.360/2014 ON