Allowed

Premakumaran Alias a Premkumar v. Kodakara Kesavan Unni Kartha

Kerala HC14 Jun 2016CRP/238/2016

Case brief

AI extract

What is this about?

A Civil Revision Petition challenging the setting aside of an ex parte decree. The High Court held the trial court was justified as summons were not duly served. The Court directed the trial court to dispose of the suit within six months.

What did the court decide?

The trial court to expedite the trial and dispose of the suit within six months. Civil Revision Petition dismissed.

Premakumaran Alias a Premkumar Vs Kodakara… — Civil Procedure and Limitation | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938

¶5

CRP.No. 238 of 2016

¶6

ORDER DTD.11.2.2014 IN IA.1093/2014 AND IA.2207/2014 IN OS.167/2010 OF PRINCIPAL SUBORDINATE JUDGE, PALAKKAD

¶7

PETITIONER/RESPONDENT/PLAINTIFF:

¶8

PREMAKUMARAN ALIAS A PREMKUMAR,

¶9

S/O. LATE ANDIAPPU, AGED 52, ARIPRA HOUSE, THIRUVAZHIYAD, NEMMARA VILLAGE, PIN 678 508, PALAKKAD DIST.

¶10

BY ADVS.SRI.K.G.BALASUBRAMANIAN SMT.AMBILY (PREMKUMAR)

¶11

RESPONDENT/PETITIONER/DEFENDANT:

¶12

KODAKARA KESAVAN UNNI KARTHA, AGED 64, S/O. LATE K.A.S. IYER, BLOCK C-1, FLAT NO:6,S NAGAR, SARKARPOOL PO, BUDGE ROAD, KOLKATA 700 143.

¶13

BY ADV. SRI.O.RAMACHANDRAN NAMBIAR

¶14

THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

msv/

¶16

K. HARILAL, J.

¶17

C.R.P. No.238 of 2016-E

¶18

Dated this the 14^th day of June, 2016

¶19

ORDER

¶20

The petitioner is the plaintiff in O.S.No.167/2010 on the files of the Court of the Principal Subordinate Judge, Palakkad. The above suit is one for specific performance of a contract and the suit was decreed as ex parte on 21/12/2010.

¶21

The respondent is the defendant in the above suit. According to the respondent, on 28/2/2014, the brother of the petitioner informed him that certain people claiming to be the owners of the plaint schedule property were visiting the property and they showed a sale deed dated 31/10/2013 executed by the Principal Sub Judge, Palakkad, in favour of them. On a perusal of the alleged sale deed, it is learnt that an ex

¶22

C.R.P. No.238 of 2016 -: 2 :-

¶23

parte decree was passed against the respondent and the sale deed was apparently executed by the court in favour of the respondent. According to the respondent, he had no knowledge about the suit or the decree passed in the above suit. No summons has been served on him. Therefore, he filed I.A.No.1093/2014 under Order 9 Rule 13 and Sec.151 of the Code of Civil Procedure to set aside the ex parte decree and I.A.No.2207/2014 under Sec.5 of the Limitation Act to condone the delay of 1245 days is filing the application to set aside the ex parte decree.

¶24

The petitioner filed objection contending that the respondent was aware of the pendency of the suit as summons was duly served on him and he appointed one Advocate by name Sri. P. Vasavan to conduct his case before court. After considering the objection and perusing the records pertaining to the service of notice and filing of Vakalath, the court below found that summons was not duly served on the respondent and Advocate Mr. P. Vasavan mistakenly

¶25

C.R.P. No.238 of 2016 -: 3 :-

¶26

filed Vakalath in the above suit and the respondent was totally unaware of the pendency of the suit as well as the decree passed therein. It was also found that actually there was no delay in filing the application to set aside the ex parte decree, as he was totally unaware about the suit and summons was not duly served on him. The legality and correctness of the findings; whereby the trial court set aside the ex parte decree, are under challenge in this Civil Revision Petition.

¶27

Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent.

¶28

It is the specific case of the respondent that summons was not duly served on him and he was unaware about the pendency of the suit as well as the passing of the ex parte decree against him. After perusing the records pertaining to the service of summons on the respondent, the court below found that summons was not duly served on the respondent and the suit was proceeded on the basis of a Vakalath

¶29

C.R.P. No.238 of 2016 -: 4 :-

¶30

which was filed by mistake by one Advocate by name Sri. P. Vasavan. It is also found that mere fact that the court has omitted to record the defendant as ex parte, that does not mean that the judgment was passed on merit. It has come to the notice of the court that no summons was duly served on the respondent and he did not file any written statement raising his contention. The court has proceeded with a wrong impression that Vakalath had been filed by the respondent. In such circumstance, it can be considered that the decree passed by the court is an ex parte decree. Further, the court found that the respondent came to know about the decree when the respondent visited the property, as contended by the petitioner and the application to set aside the ex parte decree was filed within 30 days from the date of knowledge and the respondent filed the application to condone the delay with abundant caution. Thus, the trial court found that the respondent had no knowledge about the passing of the decree as

¶31

C.R.P. No.238 of 2016 -: 5 :-

¶32

summons was not duly served on him and he was

¶33

deprived of an opportunity to contest the suit.

¶34

In view of the above finding, the court below is justified in setting aside the ex parte decree. I do not find any illegality of impropriety in the impugned order. However, considering the fact that the Original Suit is one filed in the year 2010, the trial court is directed to expedite the trial and dispose of the suit at the earliest, at any rate, within a period of six months from today.

¶35

This Civil Revision Petition is dismissed.

¶36

Sd/-

¶37

(K. HARILAL, JUDGE)

¶38

Nan/

¶39

//true copy//

¶40

P.S. to Judge

Premakumaran Alias a Premkumar v. Kodakara Kesavan Unni Kartha

Case brief

What is this about?

What did the court decide?

Premakumaran Alias a Premkumar v. Kodakara Kesavan Unni Kartha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kottarathil Mohanan Vs Karunakaran Nair

Shine Vs the Kuthiyathode Rural Housing Co. Operative Society Ltd.

Chandramathy Vs Rajendran

Manikandan Vs Panchami Finance

Gopikrishnan Vs Harikrishnan

Kottammal Indira Vs Thalakkad Rajan