Allowed

Nabeesa, W/O.Late Kareem v. Nabeesa, W/O.Sheriff

Kerala HC16 Nov 2016FAO/113/2015

Case brief

AI extract

What is this about?

The High Court set aside the ex parte decree in two suits for return of advance amounts against the appellant. The court granted the appellant an opportunity to contest the suits on merits by depositing one-third of the decree amount in the court below within one month.

What did the court decide?

Ex parte decrees in O.S.Nos.176/2012 and 247/2011 set aside upon deposit of one-third of the decree amount including interest and costs within one month.

Nabeesa, W/O.Late Kareem Vs Nabeesa, W/O.Sheriff — Execution and Attachment | Kerala HC (2016)

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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 V.CHITAMBARESH

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938

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FAO.No. 113 of 2015 ()

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(AGAINST THE ORDER DATED 28.1.2015 IN I.A.NO.1351/2014 & I.A.NO.1349/2014 IN O.S.NO.176/2012 OF SUB COURT, KOCHI)

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APPELLANT(S)/PETITIONER/1ST DEFENDANT:

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NABEESA, AGED 58 W/O.LATE KAREEM, UBAID ROAD, CHERLAI KADAVU, FORT KOCHI, REPRESENTED BY HER P.A.HOLDER SAIRA BANU, AGED 32 YEARS, W/O.NISAR, RESIDING AT C.C.5/330, BSS ROAD, MATTANCHERRY, KOCHI-682002.

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BY ADVS.SRI.M.MANOJ KUMAR MALLIA SRI.G.KRISHNAKUMAR SRI.B.S.SURAJ KRISHNA SMT.P.K.PAMALA

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RESPONDENT(S): RESPONDENTS:

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NABEESA, AGED 53 YEARS, W/O.SHERIFF, RESIDING AT IV/486, KARIPALAM, MATTANCHERRY, KOCHI-682 002.

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FAIZAL.K.S., AGED 35 YEARS, S/O.SHERIFF, RESIDING AT IV/486, KARIPALAM, MATTANCHERRY, KOCHI-682 002.

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T.K.FAZILA, AGED 38 YEARS, D/O.NABEESA, PRESENTLY RESIDING AT C/O.LINTA SUNNY, XV/646D, PIONEER'S GROUND, VATTAMAKKAL ROAD, SOUTH MOOLAMKUZHI, MUNDAMVELI P.O., KOCHI-682 507.

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R1 & 2 BY ADV. SRI.K.N.SIVASANKARAN R1 & 2 BY ADV. SRI.SUNIL SHANKER

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16-11-2016, ALONG WITH FAO. 117/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & ANIL K.NARENDRAN, JJ. ----------------------F.A.O.Nos.113 & 117 of 2015 ----------------------Dated this the 16^th day of November, 2016

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Chitambaresh, J.

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The same property belonging to the appellant in the appeals was agreed to be sold to the respondents in the appeals. Agreements dated 10.5.2011 and 9.6.2011 were accordingly executed by the power of attorney holder of the appellant. The power of attorney holder was none other than the daughter of the appellant.

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The respondents have filed O.S.Nos.176/2012 and 247/2011 for return of the amounts paid as advance. It is stated that a sum of 11,70,000/- was advanced by the plaintiff in O.S.No.176/2012. Similarly a sum of.7,70,000/- is said to have been advanced by the plaintiff in O.S.No.247/2011.

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The power of attorney holder of the appellant/defendant was duly served in the suits. It appears that the power of attorney was subsequently cancelled on 1.10.2012 after service of notice. The appellant thereafter executed a fresh power of attorney in favour of her other daughter. The new power of

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FAO.Nos.113 & 117 of 2015

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attorney holder filed applications to set aside the ex parte decree in O.S.Nos.176/2012 and 247/2011.

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The court below has dismissed the applications to set aside the ex parte decree in the suits. The court below has found that the power of attorney holder was duly served and that the appellant/defendant did not enter appearance. The appellant has however a case that the then power of attorney holder was not authorised to deal with the property. The power of attorney holder was neither authorised to sell nor authorised to defend the suits is the contention.

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We are in these circumstances inclined to

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grant an opportunity to the appellant to contest the suits on merits. The ex parte decree in O.S.Nos.176/2012 and 247/2011 shall stand set aside on the following terms and conditions:-

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i) The appellant shall deposit one-third of the decree amount (inclusive of interest and cost) in the court below within a period of one month from today.

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ii) The ex parte decree in the suits will stand

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FAO.Nos.113 & 117 of 2015

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set aside on complying with condition (i) as above.

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iii) The impugned orders will stand affirmed and the appeals dismissed on the failure of the appellant to comply with condition (i) as above.

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It is made clear that the amounts if deposited by the appellant can be withdrawn by the plaintiffs in the suits unconditionally. The court below shall also endeavour to dispose of the suits finally on merits within a period of six months in case the ex parte decree is set aside.

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The First Appeal against Orders are disposed of as above.

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Sd/V.CHITAMBARESH, Judge.

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Sd/ANIL K.NARENDRAN, Judge.

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nj/16.11.2016

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//True Copy//

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P.S. to Judge.

Nabeesa, W/O.Late Kareem v. Nabeesa, W/O.Sheriff

Case brief

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Nabeesa, W/O.Late Kareem v. Nabeesa, W/O.Sheriff

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