Dismissed

Omana Sudha and Others v. Devaki Seetha & Others

Kerala HC11 Jun 2008WP(C)/8981/2008

Case brief

AI extract

What is this about?

The Kerala High Court examined a writ petition challenging an order of the executing court which proceeded with an execution petition despite pending applications to set aside the final decree. The court held that since the special leave petition was dismissed, the petitioners were not entitled to a stay of execution.

What did the court decide?

Disposal of pending applications to set aside decree directed expeditiously; stay of execution petition refused.

Omana Sudha and Others Vs Devaki Seetha & Others — Execution and Attachment | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930

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WP(C).No. 8981 of 2008(T)

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------------------------AGAINST THE ORDER DATED / / IN EP 1/1999 IN OS.132/1980 of I ADDL.SUB COURT,TRIVANDRUM

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PETITIONERS:

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OMANA SUDHA, THALAVANKONATH VEEDU, PUNNATHANATH MURI, VILAPPIL P.O., THIRUVANANTHAPURAM.

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S.PREETHA, OF DO. DO.

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P.PRADEEP, OF DO. DO.

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JAYAKUMARI, PLOT NO.10, PADMA NAGAR, KOTTACKAKOM, FORT, THIRUVANANTHAPURAM.

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SARATH KUTTAN, OF DO. DO.

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ASWATHY, (MINOR,AGED 16) OF DO. DO. REPRESENTED BY HER MOTHER JAYAKUMARI, THE 4TH PETITIONER.

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BY ADV. SRI.K.B.PRADEEP

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RESPONDENTS:

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DEVAKI SEETHA, ANANDA BHAVAN, KOKKUDIMURIYIL, KUTTICHAL, MANNOORKARA VILLAGE, NEDUMANGAD.

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KUTTAN VAIDYAN RAVEENDRAN, RESIDING AT PADMA NAGAR, KOTTACKAKOM, FORT, THIRUVANANTHAPURAM.

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NARAYANAN CHANDRASEKHARAN, DEVAKI SADANAM, KARUMOM, EDAGRAMOM, THIRUVANANTHAPURAM.

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C.P.PRASANTHKUTTAN, OF DO. DO.

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BY ADV. SRI.M.R.ANANDAKUTTAN FOR R2

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SMT.M.HEMALATHA FOR R2

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SRI.R.S.KALKURA FOR R.1

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX IN W.P.(C) No.8981/2008

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EXT.P1 TRUE COPY OF THE I.A.NO.4019/2001 IN O.S.NO.132/1980

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EXT.P2 TRUE COPY OF THE ORDER DT. 26.11.2007 OF THE SUB JUDGE, THIRUVANANTHAPURAM IN E.P.NO.1/1999 IN O.S.NO.132/1980

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EXT.P3 TRUE COPY OF OBJECTIONS DATED 2.1.2001.

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//TRUE COPY//

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P.A. TO JUDGE.

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M.SASIDHARAN NAMBIAR, J.

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W.P.(C) No.8981 of 2008

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Dated this the 10^th June, 2008.

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J U D G M E N T

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Petitioners are the petitioners/defendants in I.A.No.4019/2001, a petition to set aside the final decree. This petition is filed under Article 227 of the Constitution of India to quash Ext.P2 order passed by the Executing Court and also for a direction to Sub court, Thiruvananthapuram, to consider and dispose I.A.Nos.4019/2001, 940/06, 5017/07 and 5018/07 before proceeding with the Execution Petition. Ext.P2 order is challenged on the ground that that order was passed without considering Ext.P3 objection filed to the execution petition.

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The learned counsel appearing for the petitioners was heard. Ext.P2 order shows that no objection was filed, and, therefore, the Execution Petition was posted for further steps. Ext.P3 is the objection filed by the 3^rd judgment debtor to the execution petition filed in 2001. On going through Ext.P3, I do not find any valid contention so as to interfere with Ext.P2 order. What is stated in

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W.P.(C) No.8981/2008

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Ext.P3 is that the statement in the execution petition that there is no appeal is not correct, as A.S.No.356/1982 was filed, though it was dismissed later confirming the decree. The other reason stated is that against the judgment in A.S.No.356/1982, a special leave petition is pending before the Apex Court. The learned counsel was fair enough to submit that that petition was also subsequently dismissed. Yet another reason stated is that petition to set aside the final decree is pending. On these grounds, there is no necessity to interfere with Ext.P2 order.

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The learned counsel for the petitioners pointed out

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that petitions to set aside the final decree, as well as other petitions referred to in the writ petition are pending, and, therefore, there may be a direction to the Executing Court to dispose those petitions expeditiously. It was also submitted that execution petition shall not be allowed to proceed before disposal of those petitions.

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Considering the fact that final decree was confirmed by this Court, and even the special leave petition was dismissed by the Supreme Court, I do not find that petitioners are entitled to contend that Execution Petition is to be stayed, till the disposal of the petition

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W.P.(C) No.8981/2008

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to set aside final decree. In such circumstances, that prayer cannot be granted.

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The writ petition is disposed of with a direction to Sub Court, Thiruvananthapuram, to dispose I.A.Nos. 4019/2001, 940/06, 5017/07 and 5018/07 as expeditiously as possible.

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M.SASIDHARAN NAMBIAR, JUDGE

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nj.

Omana Sudha and Others v. Devaki Seetha & Others

Case brief

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Omana Sudha and Others v. Devaki Seetha & Others

Case brief

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