The High Court at Ernakulam dismissed the original petition challenging the lower court’s order rejecting an application to set aside an ex parte decree due to failure to show sufficient cause for non-appearance.
The original petition is dismissed and the impugned order stands upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 8TH DAY OF SEPTEMBER 2016/17TH BHADRA, 1938
OP(C).No. 4515 of 2013 (O)
AGAINST THE ORDER IN E.A.NO.180/13 IN EP NO.37/2011 IN OS 9/2009 OF THE PRINCIPAL MUNSIFF'S COURT,ALAPPUZHA DATED 05-10-2013
PETITIONER:
SREE MUNNODI DEVASWOM MANAVA SEVA TRUST, REG.NO.491/01, KANJIRAMCHIRA, REPRESENTED BY ITS PRESIDENT T.G.SHAJI.
BY ADV. SRI.B.PRAMOD
RESPONDENT:
M.PURUSHOTHAMAN, KARUVELIL VEETTIL, PARAVOOR P.O.,
ALAPPUZHA-688 501.
BY ADV. SRI.R.MURALEEKRISHNAN ADV. SRI.S.HEMALAL
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 4515 of 2013 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 : TRUE COPY OF THE SALE NOTICE DT.12-4-2013.
EXHIBIT P2 : TRUE COPY OF THE EA 119/2013 IN EP 37/2011 IN OS 9/2009 ON THE FILE OF THE MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P3 : TRUE COPY OF THE SCHEDULE OF WITNESS DT.17-6-2013 SUBMITTED BY THE RESPONDENT.
EXHIBIT P4 : TRUE COPY OF THE EA 180/2013 IN EP 37/2011 IN OS 9/2009 ON THE FILE OF THE MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P5 : TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN EA 180/2013 IN EP 37/2011 IN OS 9/2009 ON THE FILE OF THE MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P6 : TRUE COPY OF THE ORDER DT.5-10-2013 IN EA 180/2013 IN EP 37/2011 IN OS 9/2009 ON THE FILE OF THE MUNSIFF COURT, ALAPPUZHA.
RESPONDENT(S)' EXHIBITS:
NIL
//true copy//
P.S. to Judge
K. HARILAL, J.
-----------------------------------------------------O.P. (C) No.4515 of 2013-O
-----------------------------------------------------Dated this the 8th day of September, 2016
JUDGMENT
The petitioner is the 1st Judgment Debtor in E.P.No. 37/2011 in O.S.No.9/2009 on the files of the Munsiff's Court, Alappuzha. Altogether, there are six Judgment Debtors in the Execution Petition. This Original Petition has been filed challenging the impugned order dismissing E.A. No. 180/2013 filed therein. The said Execution Application was filed for setting aside the ex parte order dated 13/6/2011 against the petitioner. The reasons stated in the said application is that notices to the Judgment Debtors were received by somebody else and hence they could
O.P. (C) No.4515 of 2013 -: 2 :-
not appear before court. The counter petitioner filed objection stating that there is no bona fides in the reason stated above.
notices were duly and properly served on all the Judgment Debtors. Apart from that, notice was issued to the 1st Judgment Debtor/petitioner Trust and the same was accepted by the President himself who is also arrayed as the 2nd Judgment Debtor. If notices were not duly and properly served, it is incumbent upon the Judgment Debtors to show that they were prevented from appearing before the court for
O.P. (C) No.4515 of 2013 -: 3 :-
sufficient reasons. But, they failed to establish sufficient reasons for their non-appearance before the Execution Court. After examining the records, the Execution Court specifically observed that the present petition is filed for delaying the execution of the decree. I do not find any reason to disbelieve the above observation.
Consequently, this Original Petition (Civil) will stand dismissed.
Sd/-
(K. HARILAL, JUDGE)
Nan/
//true copy//
P.S. to Judge
3 issues framed by the court
Whether the impugned order dismissing the execution application for lack of sufficient cause for non-appearance is lawful and proper.
Whether sufficient evidence was established to rebut the finding that the petition was filed to delay execution.
Whether the lower court erred in failing the petitioner of legal and propriety of its findings on service of notices.
SREE MUNNODI DEVASWOM MANAVA SEVA TRUST
M.PURUSHOTHAMAN
K. Harilal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
