Disposed

Asok Chalissery v. Canel Club, Thrissur

Kerala HC3 Aug 2016OP(C)/1554/2016

Case brief

AI extract

What is this about?

The High Court adjourned the disposal of an execution petition involving recovery of possession. The execution was kept in abeyance pending the decision on the applicant's pending applications to set aside an ex parte decree and condone delay in the court below.

What did the court decide?

Execution order of delivery kept in abeyance pending disposal of anticipated applications by the Sub Court.

Asok Chalissery Vs Canel Club, Thrissur — 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.RAMAKRISHNAN

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WEDNESDAY, THE 3RD DAY OF AUGUST 2016/12TH SRAVANA, 1938

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OP(C).No. 1554 of 2016 (O)

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E.P. NO.197/2014 IN O.S. NO.193/2011 OF II ADDITIONAL SUB COURT, THRISSUR.

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PETITIONER(S):

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ASOK CHALISSERY, AGED 48 YEARS, S/O CHALISSERY OUSEPH, ARANATTUKARA VILLAGE-DESOM, THRISSUR TALUK.

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BY ADVS.SRI.G.SREEKUMAR (CHELUR), SRI.N.MANU THAMPI, SRI.P.R.JAYASANKAR.

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RESPONDENT(S):

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1. CANEL CLUB,

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REPRESENTED BY T. CHANDRAN, IPS, AGED:64 YEARS, S/O THEKKOOT NARAYANA MENON, NETTISSERY VILLAGE, MUKKATTUKKARA DESOM, THRISSUR TALUK, PIN-680 001.

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2. SECRETARY,

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K.D. AUGUSTINE, AGED:48 YEARS, S/O KURUPPASSERY THOMAS, AYYANTHOLE VILLAGE, PUTHOORKKARA DESOM, THRISSUR TALUK, PIN-680 001.

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3. SOUMYA KURIES AND LOANS, THRISSUR VILLAGE AND TALUK, REPRESENTED BY MANAGING DIRECTOR, PIN-680 001.

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4. K.F. VARGHEESE, AGED:51 YEARS, S/O KOOLA FRANCIS, AARANATTUKARA VILLAGE DESOM, THRISSUR TALUK, PIN-680 001.

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5. JESSY VARGHEESE, W/O K.F. VARGHEESE, AARANATTUKARA VILLAGE DESOM, THRISSUR TALUK, PIN-680 001.

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OP(C).No. 1554 of 2016 (O)

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6. SUNNY CHALISSERY, AGED:51 YERS, S/O CHALISSERY OUSEPH, AARANATTUKARA VILLAGE DESOM, THRISSUR TALUK, PIN-680 001.

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R1 & R2 BY ADV. SRI.K.G.BALASUBRAMANIAN R4 TO R6 BY ADV. SMT.SADHANA KUMARI ESWARI.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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OP(C).No. 1554 of 2016 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1 A TRUE COPY OF THE PLAINT IN OS.193/11 ON THE FILE OF THE SUB COURT, THRISSUR DTD. 10/01/2013.

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P2 A TRUE COPY OF THE WRITTEN STATEMENT IN EXT P1 SUIT FILED BY THE DEFENDANTS DTD 20/10/2011.

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P3 A TRUE COPY OF THE JUDGMENT DTD. 20/12/2013 IN OS NO. 193/2011 BEFORE THE PRINCIPAL SUB COURT, THRISSUR.

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P4 A TRUE COPY OF THE AFFIDAVIT AND PETITION DTD. 19/02/2015 FILED BEFORE THE SUB COURT, THRISSUR.

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P5 A TRUE COPY OF THE ORDER DTD. 20/05/2016 IN EP NO. 197/14 IN OS. NO.193/2011.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K.RAMAKRISHNAN, J.

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= = = = = = = = = = = = = = = = = O.P(C) No.1554 of 2016 - - - - - - - - - - - - - - - - - - - - - Dated this the 03^rd day of August, 2016

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This petition is filed by the petitioner

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challenging Ext.P5 order in E.P. No.197 of 2014 in O.S. No.193 of 2011 on the file of the Second

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Additional Sub Court, Thrissur. The petitioner herein is the first defendant in the aforesaid suit.

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The suit was filed by respondents 1 and 2 for recovery of possession on the strength of title.

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The third respondent, who is a chitty company, filed a suit against the petitioner and respondents 4 to

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6 as O.S. No.2160 of 2001 and the said suit was

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decreed and execution petition was filed against the petitioner and respondents 4 to 6. Property belonging to the petitioner was auctioned in that execution petition and it was purchased by the

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third respondent and the sale was confirmed on

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O.P(C) No.1554 of 2016

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-: 2 :-

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22.09.2008 and sale certificate was issued on

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01.03.2010. Thereafter the third respondent executed an assignment deed assigning their right in favour of the 1^st respondent as document No.3715 of 2010 of SRO Ayyanthole. Since delivery of property was not obtained through court, respondents 1 and 2 filed the present suit, viz., O.S. No.193 of 2011 before the Second Additional Sub Court, Thrissur for recovery of possession of the property from the petitioner herein on the strength of title. That was also decreed ex parte against the petitioner as he was working abroad at that time. According to the petitioner, in the suit no notice was served on him and he came to know about the decree only later. According to him, the suit is not maintainable. Though the petitioner raised

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O.P(C) No.1554 of 2016

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-: 3 :-

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that objection before the court below, that was repelled by the court below as per Ext.P5, order and delivery was ordered. Against the said order, the preset petition is filed.

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Heard Shri Sreekumar G.Chelur, learned counsel for the petitioner, Shri K.G.Balasubramanian, learned counsel for respondents 1 and 2 and Smt.Sadhana Kumari, learned counsel for respondents 4 to 6. Notice to third respondent was

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dispensed with in these proceedings.

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Learned counsel for the petitioner submitted that petitioner filed I.A. No.1032 of 2015 to set aside the ex parte decree in O.S. No.193 of 2011 along with I.A. No.1031 of 2015 to condone

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the delay in filing the application to set aside the ex parte decree and those petitions are pending

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O.P(C) No.1554 of 2016

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-: 4 :-

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before the Sub Court. It is further submitted that

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if those petitions are allowed, the execution petition will not be maintainable.

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On the other hand, learned counsel for respondents 1 and 2 submitted that there is more than 300 days delay in filing the petition to set aside the ex parte decree.

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Since the petitioner has already moved a

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petition to set aside the ex parte decree as I.A. No.1032 of 2015 along with I.A. No.1031 of 2015 to condone the delay of 386 days in filing the said petition, this Court feels that further proceedings in the execution petition can be kept in abeyance till the disposal of those two applications by the court concerned. This Court also feels that a time frame can be fixed for disposal of the aforesaid

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O.P(C) No.1554 of 2016

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-: 5 :-

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applications which may meet the ends of justice as far as both parties are concerned. Hence the petition is disposed of with the following directions:

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The Second Additional Sub Court, Thrissur is directed to dispose of I.A. Nos.1031 and 1032 of 2015 in O.S. No.193 of 2011 pending before the Second Additional Sub Court, Thrissur as expeditiously as possible, at any rate, before the court closes for the Onam holidays. The parties are directed to co-operate with the court below for disposal of the applications. Till then the execution court is directed to keep the order of delivery passed in E.P. No.197 of 2014 in O.S.No.193 of 2011 pending before the Second Additional Sub Court, Thrissur in abeyance.

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O.P(C) No.1554 of 2016

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-: 6 :-

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With the above directions and observations, the

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Original Petition is disposed of.

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Office is directed to communicate a copy of this judgment to the court concerned immediately.

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Sd/-

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K.RAMAKRISHNAN, JUDGE.

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VSV

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//True copy//

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P.S. To Judge

Asok Chalissery v. Canel Club, Thrissur

Case brief

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Asok Chalissery v. Canel Club, Thrissur

Case brief

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