Allowed

Devyamma Jyothi v. State of Kerala

Kerala HC15 Jun 2016OP(C)/1169/2016

Case brief

AI extract

What is this about?

The High Court set aside the Sub Court's dismissal of an execution petition restoration application. The lower court had erased the petition citing Order IX Rule 5 CPC's inapplicability. The High Court held that since the prayer was unambiguous, substantial justice required restoration rather than dismissal on a technical ground.

What did the court decide?

Impugned order dismissing the restoration application (Ext.P4) set aside; Execution Petition (Ext.P1) restored to files for disposal.

Devyamma Jyothi Vs State of Kerala — 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 K.HARILAL

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WEDNESDAY, THE 15TH DAY OF JUNE 2016/25TH JYAISHTA, 1938

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OP(C).No. 1169 of 2016 (O)

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EA.244/2013 IN EP.164/2003 IN LAR.250/1993 OF SUB COURT, KOLLAM

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PETITIONER(S):

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DEVYAMMA JYOTHI, D/O.DEVYAMMA, DEVI VEEDU, MAYYANADU CHERRY, KOLLAM.

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BY ADV. SRI.B.KRISHNA MANI

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RESPONDENT(S):

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THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM-691001.

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BY GOVERNMENT PLEADER SRI.GITESH. R.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 1169 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1: TRUE COPY OF THE EXECUTION PETITON, EP.164/03 IN LAR.250/93 BEFORE THE SUB COURT, KOLLAM DATED 18/10/2003

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P2: TRUE COPY OF THE APPLICATION, EA.496/11 EP.164/03 IN LAR.250/93 BEFORE THE SUB COURT KOLLAM DATED 20/6/11.

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P3: TRUE COPY OF THE APPLICATION EA.244/13 AND AFFIDAVIT DATED 26/8/13 IN LAR.250/93 BEFORE THE SUB COURT, KOLLAM.

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P4: TRUE COPY OF THE ORDER DATED 14/8/14 IN EA.244/13 IN EP.164/03 LAR 250/93 BEFORE THE SUB COURT, KOLLAM.

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RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

“C.R.”

K. HARILAL, J.

O.P. (C) No.1169 of 2016-O

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-----------------------------------------------------Dated this the 15^th day of June, 2016

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JUDGMENT

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The petitioner herein is the Decree Holder in L.A.R. No.250/93 on the files of the Sub Court, Kollam. According to the petitioner, while she has been prosecuting Ext.P1 Execution Petition diligently, the court below dismissed the said Execution Petition for default on the ground that when the Execution Petition was called for hearing, the applicant or her counsel failed to appear before court. Thereafter, the petitioner filed Ext.P3 application seeking restoration of the said Execution Petition on the files, so as to dispose of the case on merits. But the court below dismissed the said application, by Ext.P4, on the ground that Order IX Rule 5 of the Code of Civil Procedure is not applicable

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O.P. (C) No.1169 of 2016 -: 2 :-

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to the Execution Petition. The legality of the reasoning whereby the court below dismissed Ext.P3 application,

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is under challenge in this Original Petition (Civil).

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Heard the learned counsel for the petitioner.

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As rightly contended by the learned counsel for the petitioner an application seeking restoration of the Execution Petition has been dismissed on the sole ground that the application was filed under Order IX Rule 5 of the CPC and the said provision cannot be applied to the orders passed in Execution Petitions. But, going by Ext.P3 application filed by the petitioner, it is well discernible that the prayer in the petition is to restore the Execution Petition which was dismissed for default, on the files, after setting aside the order dismissing the Execution Petition. Thus, even though a wrong provision is quoted, there is no ambiguity or any kind of confusion in the prayer portion. But, unfortunately, the court below has considered the quoting of a wrong provision only and has lost sight

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O.P. (C) No.1169 of 2016 -: 3 :-

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over the prayer portion of the application. The court cannot forget the salutary principle that “the rules of procedure are only handmade of justice”. Quoting of a wrong provision will not stand in the way of rendering substantial justice to the party, if the prayer in the petition is unambiguous and falls within the ambit of correct law, which is not quoted in the petition. When substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preferred rather than disposal on technical considerations.

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In the above view, Ext.P4 impugned order will stand set aside and Ext.P1 Execution Petition will stand restored on the files of the Principal Sub Court, Kollam. The Principal Sub Court, Kollam is directed to proceed with the Execution Petition and dispose the same in accordance with law, at the earliest. It is made clear that the petitioner will not be entitled to get interest for the decree amount for the period in

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O.P. (C) No.1169 of 2016 -: 4 :-

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which the Execution Petition stood dismissed.

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This Original Petition (Civil) is disposed of

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accordingly.

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Sd/-

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(K. HARILAL, JUDGE)

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Nan/

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//true copy//

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P.S. to Judge

Devyamma Jyothi v. State of Kerala

Case brief

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What did the court decide?

Devyamma Jyothi v. State of Kerala

Case brief

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