Disposed

Saral v. Madhavan Nadar

Kerala HC31 Oct 2016OP(C)/2708/2016

Case brief

AI extract

What is this about?

The High Court, exercising supervisory jurisdiction under Article 227, directed the trial court to dispose of pending applications to set aside an ex parte decree within one week, deferring execution proceedings. The court addressed a challenge to an order appointing a commissioner due to lack of prior opportunity for the petitioner to object to the execution petition.

What did the court decide?

Direction to the trial court to pass orders on pending applications, including setting aside the ex parte decree, within one week, with execution proceedings deferred for 10 days.

Saral Vs Madhavan Nadar — Civil Procedure and Limitation | 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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MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938

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OP(C).NO. 2708 OF 2016 (O)

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PETITIONER:

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SARAL,

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D/O. THAMARI, CHITTILAMKONATHU KIZHAKKUMKARA PUTHEN VEEDU, PLAMPAZHINJI DESOM, OTTASEKHARAMANGALAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.

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BY ADVS.SRI.V.G.ARUN (K/795/2004) SMT.INDULEKHA JOSEPH

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SRI.NEERAJ NARAYAN

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RESPONDENTS:

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1. MADHAVAN NADAR, S/O. MANAS NADAR, LEELA BHAVAN, NORTH OF CSI CHURCH, PLAMPAZHINJI DESOM, OTTASEKHARAMANGALAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695121.

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2. LEELA, W/O. MADHAVAN NADAR, LEELA BHAVAN, NORTH OF CSI CHURCH, PLAMPAZHINJI DESOM, OTTASEKHARAMANGALAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695121.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).NO. 2708 OF 2016 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF I.A.NO.3807 OF 2015 IN O.S.NO.974 OF 2013 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA.
EXHIBIT P2	TRUE COPY OF I.A.NO.3808 OF 2015 IN O.S.NO.974 OF 2013 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA.
EXHIBIT P3	TRUE COPY OF E.P.NO.223 OF 2015 IN O.S.NO.974 OF 2013 ON THE FILE OF THE SECOND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA.
EXHIBIT P4	TRUE COPY OF ORDER PASSED BY THE SECOND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA IN E.A.NO.439 OF 2015 IN E.P.NO.223 OF 2015 IN O.S.NO.974 OF 2013.

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RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

P.A. TO JUDGE

DST

K. HARILAL, J.

= = = = = = = = = = = = = = = = = = = = = O.P. (C) No. 2708 of 2016

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 31st day of October, 2016

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J U D G M E N T

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The petitioner is the defendant in O.S. No.974

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of 2013 on the files of the Principal Munsiff's

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Court, Neyyattinkara and the respondents are the plaintiffs in the said Suit. The said Suit was decreed ex parte on 12.06.2015. According to the petitioner, on 15.07.2015 itself he has filed Ext.P1 petition, to set aside ex parte decree with Ext.P2 petition to condone delay of three days. Meanwhile, on 18.09.2015, the respondents filed Ext.P3 Execution Petition, for executing ex parte decree. On 23.11.2015, the respondents filed objection to Exts.P1 and P2 petitions. But, thereafter there was no posting for Exts.P1 and P2 petitions.

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On 21.10.2016, when the Execution Petition

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O.P. (C) No. 2708 of 2016

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-: 2 :-

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was called, the counsel for the petitioner sought for time for filing objection to Ext.P3 Execution Petition. But, the court below without giving an opportunity to the petitioner to file objection to Ext.P3 Execution Petition, passed an order appointing a Commissioner and Surveyor for executing the decree vide Ext.P4 order. The legality and propriety of Ext.P4 order is challenged in this Original Petition (Civil). So also, sought for necessary direction to the trial court.

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Heard the learned counsel for the

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petitioner and the learned counsel for the respondents.

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The learned counsel for the petitioner advanced arguments in support of the contentions raised in this Original petition (Civil).

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O.P. (C) No. 2708 of 2016

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-: 3 :-

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Per contra, the learned counsel appearing

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for the respondents drew my attention to the proceedings before the trial court as well as execution court and submitted that the matter was being dragged on, for the last more than 36 years. Going by the proceedings sheet, it could be seen that the petitioner was not diligent in prosecuting the Suit.

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However, having regard to the pendency of

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an application filed under Order IX Rule 13 of the Code of Civil Procedure, 1908, this Court is

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inclined to issue direction, to the trial court, to dispose the same within a time frame, in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Consequently, the Munsiff's Court, Neyyattinkara, is directed to consider and

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O.P. (C) No. 2708 of 2016

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-: 4 :-

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pass orders on Exts.P1 and P2 petitions, within a period of 'one week' from today and all further proceedings in Ext.P3 Execution Petition will stand deferred for a period of 10 days from today.

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This Original Petition (Civil) is disposed of

accordingly.

Hand Over.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Saral v. Madhavan Nadar

Case brief

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What did the court decide?

Saral v. Madhavan Nadar

Case brief

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What did the court decide?

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