Dismissed

Minu Jacob v. M.M.Gopalan Nair

Kerala HC15 Mar 2013FAO/368/2012

Case brief

AI extract

What is this about?

This first appeal against the dismissal of an application to set aside an ex-parte decree and condone significant delay was dismissed. The court held there was no merit to condone the delay or set aside the decree, and objections regarding excessive execution must be raised in execution proceedings.

What did the court decide?

Application for condonation of delay and the appeal were dismissed with costs.

Minu Jacob Vs M.M.Gopalan Nair — Execution and Attachment | Kerala HC (2013)

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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 THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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FRIDAY, THE 15TH DAY OF MARCH 2013/24TH PHALGUNA 1934

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FAO.No. 368 of 2012 ()

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AGAINST THE ORDER/JUDGMENT IN OS.15/1997 of SUB COURT, THIRUVALLA DATED 0706-2011

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APPELLANT(S):LEGAL REPRESENTATIVE OF THE DECEASED PETITIONER IN I.A.1040/2010 IN O.S.15/1997

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MINU JACOB

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PERUMACHERIL CHINGAVANAM KARA NATTAKOM VILLAGE, KOTTAYAM.

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BY ADVS.SRI.A.K.ALEX

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SRI.P.KURUVILLA JACOB

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RESPONDENT(S/PLAINTIFF:

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M.M.GOPALAN NAIR RESIDING AT MUNDANTHANATHU HOUSE, EAST OTHARA, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK 689546

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R BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA)

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15-032013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOTTATHIL B. RADHAKRISHNAN &

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B. KEMAL PASHA, JJ.

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C.M.Appl. 1046 of 2012 & F.A.O. No. 368 OF 2012

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Dated this the 15^th day of March, 2013

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J U D G M E N T

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Thottathil B. Radhakrishnan, J

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The application for condonation of delay of 436 days in instituting this appeal against an order refusing to set aside the exparte decree is filed by one of the legal representatives of the deceased defendant.

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The suit was decreed exparte on 27.1.1998. The defendant applied under Order IX Rule 13, with an application seeking condonation of delay of more than 12½ years. By that time, the decree was executed and the property was sold through court sale. The application to set aside the exparte decree was dismissed as per the order dated 7.6.2011.

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F.A.O. 368/12

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-:2:-

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Thereafter, the defendant who had filed that application, is said to have died on 4.6.2012. The quality of right that went on to his legal representatives, in our view is insufficient either to condone the delay or to have the exparte decree set aside. There is no merit in this appeal to that extent.

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Learned counsel for the appellant says that in the course of execution, properties which belonged to the wife of the defendant were also actually sold. This appeal is only by the daughter of the defendant and not by his widow. Now, it is stated that the widow is also no more and the appellant, as a daughter gets her share of right. Whatever that be, any complaint as to excessive execution and matters connected therein can be raised only in the execution side in terms of S.47 of the Code of Civil Procedure, even if there is any sufficient ground for that.

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We see no grounds to entertain this appeal against the dismissal of the application to condone the delay of 12½ years in applying to set aside the exparte decree, that too, by condoning

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F.A.O. 368/12

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-:3:-

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the delay of more than 436 days in instituting this appeal. We see no sufficient cause to condone the delay under S.5 of the Limitation Act in filing this appeal.

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In view of what we have stated above, the application for condonation of delay and the appeal are dismissed with costs.

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Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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[True copy]

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P.S. to Judge.

Minu Jacob v. M.M.Gopalan Nair

Case brief

What is this about?

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Minu Jacob v. M.M.Gopalan Nair

Case brief

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