Allowed

K.A. Unnikrishnan v. a.Unnikrishnan

Kerala HC25 Aug 2016OP(C)/932/2010

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging the dismissal of an execution petition due to default in payment of restoration costs. The Court allowed the petition on the condition that the petitioner pays an enhanced sum of Rs. 3,000/- to the respondent's counsel and the Mediation Centre within one week; upon payment, the lower court order will be set aside and the execution restored. Ot

What did the court decide?

Writ allowed on condition that petitioner pays Rs. 3,000/- (Rs. 1,500/- to respondent's counsel, Rs. 1,500/- to Mediation Centre) within one week; on payment, impugned order set aside and execution re

K.A. Unnikrishnan Vs a.Unnikrishnan — 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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THURSDAY, THE 25TH DAY OF AUGUST 2016/3RD BHADRA, 1938

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OP(C).No. 932 of 2010 (O)

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E.P.136/2009 IN OS 1069/1997 of MUNSIFF COURT, VAIKOM

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---------PETITIONER:

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K.A.UNNIKRISHNAN, S/O.K.ACHUTHA MENON, ACHUTHAM HOUSE,SANTHI NAGAR,KANNANKULANGARA,, THRIPUNITHURA,ERNAKULAM.

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BY ADVS.SRI.A.BALAGOPALAN

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SRI.M.S.IMTHIYAZ AHAMMED SRI.A.RAJAGOPALAN

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RESPONDENT:

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K.UNNIKRISHNAN, THEKKEDATHU VEEDU, AYYARKULANAGARA,THEKKANADA.P.O, VAIKOM, KOTTAYAM DISTRICT PIN 688 334.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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OP(C) NO 932 OF 2010

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APPENDIX

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PETITIONER(S)'EXHIBITION

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P1: COPY OF THE ENLARGEMENT APPLICATION FILED BY THE PETITIONER BEFORE THE EXECUTION COURT ON 02.04.2010 SEEKING EXTENSION OF TIME.

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P2: COPY OF THE TIME EXTENSION APPLICATION FILED BY THE PETITIONER BEFORE THE EXECUTION COURT ON 14/05/2010 SEEKING EXTENSION OF TIME.

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P3: COPY OF E.A. 237/2010 FILED BY THE PETITIONER IN E.P 136/2009 IN O.S. 1069/1997 ON THE FILE OF THE MUNSIFFS COURT VAIKOM FOR RESTORATION.

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P4: COPY OF THE ORDER PASSED BY THE MUNSIFFIS COURT,VAIKOM IN EXHIBIT P3 RESTORATION APPLICATION.

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RESPONDENT(S)'EXHIBITION

/TRUE COPY/

P.S.TO JUDGE

K.V.

K. RAMAKRISHNAN, J.

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.................................................. O.P.(C).No.932 of 2010

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....................................................... Dated this the 25^th day of August, 2016.

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JUDGMENT

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This petition is filed by the petitioner who is the decree holder in EP.No.136/2009 pending before the Munsiff Court, Vaikam challenging Ext.P4 order passed by that court under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner obtained a decree in OS.No.1069/1997 on the fie of the Munsiff Court, Ernakulam for realisation of certain amount and that was allowed. Since the respondent was residing within the jurisdiction of Munsiff Court, Vaikam, the decree was transmitted to that court and EP.No.136/2009 was filed before that court for execution of the decree. The property was attached, but later a third party entered appearance and submitted that the property has already been auctioned in another case and that is not available. So it is posted for taking further steps by the decree holder to execute the decree. In spite of opportunity given, the petitioner did not take steps. So the execution court dismissed the execution petition for default. Thereafter the petitioner filed EA.No.237/2010 for restoration of the execution petition and that was allowed by the court on payment of cost of Rs.250/- which was not paid. So the petition for restoration of execution petition dismissed for default was dismissed by the execution court vide Ext.P4 order. Aggrieved

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O.P.(C).No.932 of 2010

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by the same, the present petition has been field by the petitioner.

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Heard Sri. Balagopalan, learned counsel appearing for the petitioner and Sri. Sreekumar Chellur, learned counsel appearing for the respondent.

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Learned counsel for the petitioner submitted that since the petitioner could not trace out the particulars of the property belonging to the respondent, he could not prosecute the case. So it was dismissed for default. Though he filed an application which was allowed on payment of costs, the same could not be paid due to some omission. So there is no laches on the part of the petitioner and he prayed for allowing the application on such terms as may be fixed by this court.

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On the other hand, learned counsel appearing for the respondent vehemently opposed the petition stating that in spite of opportunity given, steps were not taken by the petitioner to execute the case. Thereafter it was dismissed for default. Though application to restore the execution petition was allowed by the court on costs, he did not pay the same. That shows that he had no interest in prosecuting the case.

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It is an admitted fact that a suit of the year 1997 was filed by the petitioner as OS.No.1069/1997 before the Munsiff Court, Ernakulam for realization of certain amount due from the respondent and that suit was decreed. Since the respondent was

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O.P.(C).No.932 of 2010 3

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not having any properties in Ernakulam and he is residing within the jurisdiction of the Munsiff Court,Vaikom, the decree was transmitted to the Munsiff Court, Vaikom for execution and thereafter EP.No.136/2009 was filed to execute the decree by attachment and sale of certain properties said to have been belonging to the respondent. When the property was attached, a third party made a claim stating that the property had already been sold in court auction in another case and he had purchased the same and that attachment was lifted. Thereafter it was posted for further steps by the decree holder to proceed against the judgment debtor. Since he did not take steps as he was not able to trace out the particulars of other properties or means available to the respondent, it was dismissed for default in the year 2010. Immediately the petitioner filed EA.No.237/2010, as that is the last execution petition as otherwise it will be barred by limitation, for restoration of the execution petition and that was allowed on payment of costs of Rs.250/-. Since the cost was not paid, the impugned order Ext.P4 was passed by the court below dismissing the petition for restoration.

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Though there is no valid reason stated for non payment of the meager costs awarded, this court feels that an opportunity has to be given to the petitioner to prosecute the case especially when this is the last execution petition and the suit was decreed in the

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O.P.(C).No.932 of 2010 4

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year 1997. But at the same time laches on the part of the petitioner can be condoned only on heavy terms especially when the respondent has been dragged to this court. So this court feels that an opportunity can be given to the petitioner to execute the execution petition of the decree against the respondent on condition that the petitioner shall pay a cost of Rs.3,000/- out of which Rs.1,500/- be paid to the counsel for the respondent appearing in this court which includes cost of Rs.250/- ordered to be paid by the court below and the balance amount of Rs.1,500/will be paid to the Kerala State Mediation and Conciliation Centre within a period of one week from today. If the amount is paid, then this petition will stand allowed and the order passed by the court below will be set aside and the execution petition will be restored. If the cost is not paid, then this petition will stand dismissed. If the cost is paid within that time and produces proof of production of that payment, Registry is directed to communicate a copy of this judgment to the court below so that the court below can restore the execution petition and proceed with the execution petition in accordance with law.

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With the above directions and observations, this petition is disposed of.

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Sd/-

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O.P.(C).No.932 of 2010 5

K.A. Unnikrishnan v. a.Unnikrishnan

Case brief

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K.A. Unnikrishnan v. a.Unnikrishnan

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