Partly allowed

P.Balasubramanian v. Manikka Moothan

Kerala HC6 Mar 2013OP(C)/410/2013

Case brief

AI extract

What is this about?

The High Court declined to interfere with the lower court order setting aside an ex parte decree due to senior age of the respondent but directed the respondent to pay Rs. 7,500 costs to the petitioner for expenses incurred in executing the erroneous sale deed.

What did the court decide?

Respondent directed to pay Rs. 7,500 as costs to the petitioner within two months, recoverable by executing the judgment if unpaid.

P.Balasubramanian Vs Manikka Moothan — Specific Performance | 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 THOMAS P.JOSEPH

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WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934

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OP(C).NO. 410 OF 2013 (O)

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I.A. NOS.1082 AND 1083 OF 2011 IN O.S. NO.55 OF 2005 PRINCIPAL SUB COURT, PALAKKAD

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PETITIONER(S):

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P.BALASUBRAMANIAN AGED 49 YEARS S/O.PAZHANI KOUNDER, 33/19, DEVI NAGAR KAMMANTHARA, VADAKKANTHARA AMSOM, PALAKKAD 678 012.

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BY ADV. SRI.K.P.BALAGOPAL

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RESPONDENT(S):

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MANIKKA MOOTHAN S/O.KUTTA MOOTHAN, 43/207, UPPATHU VEEDU MELAMURI, KOPPAM AMSOM DESOM, PALAKKAD 678 012.

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R. BY ADV. SRI.RAJESH SIVARAMANKUTTY

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(C) NO.410 OF 2013

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXHIBIT P1. TRUE COPY OF THE IA NO.1743/2009 DATED 06.06.2009 IJN OS NO.55 OF 2005.

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EXHIBIT P2. TRUE COPY OF THE EXECUTION PETITION EP NO.22/2011 IN OS NO. 55/2005 ON THE FILE OF THE PRINCIAPL SUORDINATE JUDGE PALAKKAD.

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EXHIBIT P3. TRUE COPY OF THE AFFIDAVIT ALONGWITH PETITION EA NO. 235/2011.

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EXHIBIT P4. TRUE COPY OF IA NO.1082/2011 IN OS NO.55/2005 ON THE FILE OF THE PRINCIPAL SUBORDINATE JUDGE PALAKKAD.

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EXHIBIT P5. TRUE COPY OF IA NO.1083/2011.

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EXHIBIT P6. TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER/PLAINTIFF IN IA NO.1082/2011 IN OS NO.55/2005 ON THE FILE OF THE PRINCIPAL SUBORDNATE JUDGE, PALAKKAD.

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EXHIBIT P7 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER DATED 10.6.2011 IN IA NO.1083/2011 IN OS NO.55/2005 ON THE FILE OF THE PRINCIPAL SUBORDINATE JUDGE PALAKKAD.

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EXHIBIT P8. TRUE COPY OF THE COMMON ORDER DATED 31.12.2012 IN IA NO.1082/2011 AND IA NO.1083/2011 IN OS NO.55/2005 OF THE COURT OF THE PRINCIPAL SUBORDINATE JUDGE, PALAKKAD.

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RESPONDENT(S)' EXHIBITS:

NIL

TRUE COPY

P.S. TO JUDGE

THOMAS P.JOSEPH, J.

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====================================

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O.P(C) No.410 of 2013

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====================================

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Dated this the 06^th day of March, 2013

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J U D G M E N T

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Petitioner is challenging Ext.P8, order dated 31.12.2012 on I.A. Nos.1082 and 1083 of 2011 in O.S. No.55 of 2005 of Principal Sub Court, Palakkad.

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There is an ex parte decree in favour of petitionerplaintiff for specific performance of an agreement for sale. That ex parte decree was set aside after condoning delay of 959 days as per Ext.P8, order.

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Learned counsel submits that there was no justifiable reason to condone the delay of 959 days. It is also contended that pursuant to the ex parte decree, petitioner got the sale deed executed by court spending substantial amount. It is submitted that these aspects were not taken into account by the learned Sub Judge while passing Ext.P8, order.

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Learned counsel for respondent submitted that respondent is a chronic patient aged about 85 years and it is considering his pitiable condition as well that trial court found that there was no willful laches on his part in remaining absent in

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O.P(C) No.410 of 2013

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-: 2 :-

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court and not filing application to set aside the ex parte decree on time.

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Having regard to the facts and circumstances I do not find reason to interfere with Ext.P8, order to the extent it set aside of the ex parte decree.

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But grievance of petitioner that he had to incur substantial amount pursuant to the ex parte decree has to be taken into account. It is not disputed that petitioner can get refund of value of non-judicial stamp paper pursuant to setting aside the ex parte decree, from the District Collector concerned. If any such request is made, the District Collector he has to consider the fact of setting aside the ex parte decree by a judicial order and pass appropriate orders in that regard as provided under the Stamp Act.

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In connection with execution of sale deed, petitioner had to incur other expenses. Petitioner has to be compensated for that. Having regard to all relevant circumstances, I am of the view that petitioner should be paid Rs.7,500/- by way of costs. In case that amount is not paid, petitioner can realize the same through court by executing this judgment.

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Resultantly, the Original Petition is disposed of as under:

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O.P(C) No.410 of 2013

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-: 3 :-

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(i) While no interference is required with Ext.P8, order to the extent it set aside the ex parte decree in O.S. No.55 of 2005 of Principal Sub Court, Palakkad, respondent is directed to pay/deposit in the executing court for payment to the petitioner Rs.7,500/- (Rupees Seven thousand and five hundred only) as costs within two months from this day.

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(ii) In case costs as aforesaid is not paid/deposited, petitioner can recover the amount by executing this judgment in the trial court.

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THOMAS P. JOSEPH, JUDGE.

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vsv

P.Balasubramanian v. Manikka Moothan

Case brief

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P.Balasubramanian v. Manikka Moothan

Case brief

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