Allowed

Krishnan Nair and Another v. Muhammed Khaneefa

Kerala HC21 Jan 2011OP(C)/67/2011

Case brief

AI extract

What is this about?

This original civil petition challenged an order granting delivery in an execution petition. The court held that delivery proceedings must be stayed pending the appellate court's decision on a delayed condonation application, directing a one-month stay on delivery.

What did the court decide?

Stay of order for delivery in E.P.No.247/2010 for one month pending disposal of condonation application in CMA No.107/2010.

Krishnan Nair and Another Vs Muhammed Khaneefa — Execution and Attachment | Kerala HC (2011)

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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 K.T.SANKARAN

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FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932

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OP(C).No. 67 of 2011(O) -----------------------------------O.S.NO.422/2007 OF MUNSIFF COURT, CHITTUR.

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PETITIONERS:

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----------------------

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1. KRISHNAN NAIR, S/O. NARAYANAN NAIR, 3/106 KAVARAKKODU, THATHAMANGALAM, PALAKKAD DISTRICT - 678 102.

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2. VIJAYENDRAN, S/O.KRISHNAN NAIR, 3/106 KAVARAKKODU, THATHAMANGALAM. PALAKKAD DISTRICT678 102.

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BY ADV. SRI.T.K.SANDEEP

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RESPONDENT(S):

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----------------------------

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MUHAMMED KHANEEFA, S/O.ABDUL SALAM, PALLITHERUVU, PUDUNAGARAM P.O. PALAKKAD DISTRICT - 678 503.

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BY ADV. SRI.JIJO PAUL

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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OP(C) NO.67/2011 O

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: COPY OF THE ORDER DTD. 03/07/2010 IN I.A.NO.992/2010 IN O.S.NO.422/2007 OF THE MUNSIFF COURT, CHITTUR.

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P2: COPY OF THE AFFIDAVIT DTD. 22/12/2010 IN EA.NO.689/2010 IN E.P.NO.247/1010 IN O.S.NO.422/2007 FILED BEFORE THE MUNSIFF COURT, CHITTUR.

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P3: COPY OF THE ORDER DTD. 01/01/2011 IN E.A.NO.689/2010 IN E.P.NO.247/2010 IN O.S.NO.422/2007 FILED BEFORE THE MUNSIFF COURT, CHITTUR.

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RESPONDENT'S EXHIBITS:

N I L

/TRUE COPY/

P.A.TO JUDGE

Kss

K.T.SANKARAN, J .

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O.P(C).No.67 OF 2011

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Dated this the 21st day of January, 2011

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JUDGMENT

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The respondent filed O.S.No.422 of 2007 on the file

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of the Court of Munsiff, Chittur against the
petitioners for mandatory injunction directing the
defendants to vacate the plaint schedule building.
According to the plaintiff, the defendants are
licencees.

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2. The defendants contended that at the time of
entrustment they had paid Rs.75,000/- to the plaintiff
and the interest thereon was agreed to be taken as the
rent or licence fee for the premises. It is stated
that the defendants have also filed a suit for
realisation of Rs.75,000/-.

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3. O.S.No.422 of 2007 was decreed ex parte on

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6.4.2010. The defendants filed I.A.No.992 of 2010 under
Order 9 Rule 13 of the Code of Civil Procedure to set

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O.P(C).No.67 OF 2011 2

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aside the ex parte decree. That application was
dismissed on 3.7.2010. The petitioners/defendants
filed CMA No.107 of 2010 on the file of the Court of

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the District Judge, Palakkad challenging the order
dated 3.7.2010 in I.A.No.992 of 2010. There is a delay
of 21 days in filing CMA No.107 of 2010 and an
application was filed by the petitioners to condone the
delay. It is stated that the CMA and the petition for
condonation of delay are posted to 2.2.2011.

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4. Meanwhile, EP No.247 of 2010 filed by the

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respondent/decree holder was proceeded with. The

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petitioners filed EA No.689 of 2010 to adjourn the
delivery to a date after 2.2.2011 so that by that time

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the appellate court would be able to decide the
application for condonation of delay in CMA No.107 of
2010. The Executing Court dismissed that application on
1.1.2011. Thereafter, on 5.1.2011 delivery was ordered
by the Executing Court.

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5. In the circumstances mentioned above, the

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petitioner has filed this Original Petition challenging

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O.P(C).No.67 OF 2011 3

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the order dated 1.1.2011 in E.A.No.689 of 2010.

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6. It is not disputed that the decree passed is an

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ex parte decree. It is also not in dispute that the
petitioners have filed a suit for realisation of
Rs.75,000/- from the respondent. The application for

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setting aside the ex parte decree was dismissed. It is
not in dispute that the petitioners have filed
C.M.Appeal challenging that order. There is delay in
filing the CMA. It is also not disputed that the
application for condonation of delay in filing CMA is
posted to 2.2.2011. Meanwhile, delivery was ordered.

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It is only just and proper to keep in abeyance the
proceedings for delivery pending the disposal of the
application for condonation of delay in CMA No.107 of
2010. Since the application is posted to 2.2.2011, it
is only proper to issue a direction to the District
Court, Palakkad to consider and dispose of that
application without delay. If the delay is condoned,
the petitioners would be able to pray for appropriate
interim orders. To facilitate the District Court,
Palakkad to dispose of the application for condonation

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O.P(C).No.67 OF 2011 4

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of delay and for other reliefs, it is only just and
proper to keep in abeyance the order for delivery in
E.P.No.247 of 2010 for a period of one month.

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Accordingly, the Original Petition is disposed of
as follows:

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a) The order for delivery passed in E.P.No.247
of 2010 in O.S.No.422 of 2007 Munsiff
Court, Chittur will stand stayed for a
period of one month.

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b) The District Court, Palakkad will consider
and dispose of the application for
condonation of delay in filing CMA No.107
of 2010 expeditiously and at any rate
before 10.2.2011.

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K.T.SANKARAN,
JUDGE.

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cms

Krishnan Nair and Another v. Muhammed Khaneefa

Case brief

What is this about?

What did the court decide?

Krishnan Nair and Another v. Muhammed Khaneefa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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