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2022 Supreme(Online)(KER) 4234
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 10TH DAY OF JANUARY 2022 / 20TH POUSHA, 1943 OP(C) NO. 42 OF 2022 (IN EP.41/2020, MUNSIFF COURT, THIRUVALLA)
PETITIONER/RESPONDENT/1ST JUDGMENT DEBTOR BABU JOHN AGED 50 YEARS VALIYAKADAVU HOUSE, PALLIPURATHUSSERI P.O, VAIKOM KOTTAYAM -NOW RESIDING AT NAZARATHU VILLAYIL, THIRUVALLA P.O, PATHANAMTHITTA DISTRICT PATHANAMTHITTA, PIN - 689101 BY ADVS.
BLOSSOM MATHEW THOMAS JOHN AMBOOKEN B.SAJEEV KUMAR RESPONDENTS/PETITIONERS/DECREE HOLDERS 2 TO 5 IN E.P & 2ND JUDGMENT DEBTOR:
1 MARIYAMMA VARGHESE AGED 75 YEARS W/O P. CHACKO VARGHESE, POOVAKKALA PADINJARATHIL HOUSE, ANJILITHANAM P.O, THIRUVALLA, PATHANAMTHITTA PATHANAMTHITTA, PIN – 689582.
2 SHINY MATHEWS AGED 45 YEARS D/O P. CHACKO VARGHESE, POOVAKKALA PADINJARATHIL HOUSE, ANJILITHANAM P.O, THIRUVALLA, PATHANAMTHITTA – 689582.
3 SHAJIN VARGHESE AGED 43 YEARS S/O P. CHACKO VARGHESE, POOVAKKALA PADINJARATHIL HOUSE, ANJILITHANAM P.O, THIRUVALLA, PATHANAMTHITTA – 689582.
4 SANJEEV VARGHESE AGED 40 YEARS S/O P. CHACKO VARGHESE, POOVAKKALA PADINJARATHIL HOUSE, ANJILITHANAM P.O, THIRUVALLA, PATHANAMTHITTA – 689582.
5 SALY BABU AGED 45 YEARS W/O BABU JOHN, VALIYAKADAVU HOUSE, PALLIPPURATHUSSERRI P.O, VAIKOM, KOTTAYAM, NOW RESIDING AT NAZARATHU VILLAYIL, THIRUVALLA P.O, PATHANAMTHITTA DISTRICT – 689101.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A. BADHARUDEEN, J.
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Dated this the 10th day of January, 2022
['BLOSSOM MATHEW', '', 'THOMAS JOHN AMBOOKEN', 'B SAJEEV KUMAR']
J U D G M E N T
This is an Original Petition filed under Article 227 of the Constitution of India seeking a direction to the Munsiff Court, Thiruvalla to consider and pass appropriate orders in I.A.No.2615/2021 and I.A.No.2616/2021 as expeditiously as possible. The further prayer is to set aside the order dated 23.12.2021 passed by the Munsiff Court in E.P.No.41/2020 in O.S.650/2014.
2. The learned counsel for the petitioner, who is the judgment debtor before the court below, would submit that no default on the part of the petitioner.
3. Reading the materials forming part of the Original Petition, it could be gathered that a Suit filed in the year 2014 (OS.650/2014) was contested by the defendants till 18.10.2019 and on failure by the defendant/petitioner to appear before the court below for contesting the case, exparty decree was passed. It was thereafter the petitioner filed I.A.3138/2019 to set aside the exparte decree. But it was also dismissed for non prosecution due to the failure on the part of the petitioner. It was thereafter, the execution court issued notice to the petitioner in E.P.No.41/2020. Then also he did not appear. When Ext.P3 order directing him to vacate the decree schedule property and hand over possession to the decree holder within 7 days was issued, I.A.No.2615/2021 and I.A.No.2616/2021 were filed to restore the application I.A.No.3138/2019 after condoning the delay of 45 days. Now the learned counsel for the petitioner would submit that till the disposal of the pending applications, viz. I.A.No.2615/2021 and I.A.No.2616/2021, the execution of the decree may be stayed with direction to the learned Munsiff to consider the above application within a time frame.
4. Wilful laches on the part of the petitioner could be seen prima facie in prosecuting the matter. That, in fact, resulted in Ext.P3 order passed by the executing court.
5. However, in the interest of justice, I direct the learned Munsiff, Thiruvalla to dispose of I.A.No.2615/2021 and I.A.No.2616/2021 within 60 days from today. Till then, the further proceedings in E.P.No.41/2020 shall stand stayed on condition that the petitioner herein shall pay Rs.15,000/- (Rupees Fifteen thousand only) as cost to the decree holders/plaintiffs in the Suit within 15 days. It is made clear that the order of stay shall not be in operation if Rs.15,000/- ordered as cost is not paid by the judgment debtor/defendant, who is the petitioner herein, to the decree holder/plaintiff within 15 days. Then the execution can go on even without disposing I.A.2615/2021 and I.A.No.2616/2021.
The Original Petition is disposed of accordingly.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF OP(C) 42/2022 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF I.A.2615/2021 IN O.S.650/2014 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, THIRUVALLA DATED 18.12.2021.
EXHIBIT P2 TRUE COPY OF I.A.2616/2021 IN O.S.650/14 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, THIRUVALLA DATED 18.12.2021.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 23.12.2021 PASSED BY THE HONOURABLE MUNSIFF, THIRUVALLA IN E.P.NO.41/2020 IN O.S.650/2014.
