Partly allowed

M/S.Muthoot Vehicle and Assets Finance Ltd. v. B.Jose

Kerala HC5 Mar 2018OP(C)/541/2018

Case brief

AI extract

What is this about?

The Kerala High Court, under Art.227, set aside orders dismissing an execution application due to counsel absence caused by a state-wide bar boycott. It restored the application to the execution court for proceeding further.

What did the court decide?

Impugned orders dated 31.3.2017 and 07.10.2017 set aside; Execution Application No.190/2015 restored to the file of the execution court.

M/S.Muthoot Vehicle and Assets Finance Ltd. Vs B.Jose — Execution and Attachment | Kerala HC (2018)

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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 ALEXANDER THOMAS

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MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939

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OP(C).No. 541 of 2018

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(EA.NO.45/2017 IN EP.NO.161/2011 OF III ADDITIONAL DISTRICT COURT, KOLLAM)

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-------

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PETITIONER/DECREE HOLDER:-

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M/S.MUTHOOT VEHICLE AND ASSETS FINANCE LTD., KURIAN TOWER, BANERJI ROAD, ERNAKULAM, REPRESENTED BY THE POWER OF ATTORNEY HOLDER E.MADHU, S/O.LATE KELAPPAN, AGED 41 YEARS, RESIDING AT EDAVATH HOUSE, KARAYADU POST, MEPPAYOOR, CALICUT.

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BY ADVS.SRI.C.S.MANILAL SRI.S.NIDHEESH

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RESPONDENT(S)/JUDGMENT DEBTORS:-

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1. B.JOSE, S/O.BENNICHAN, KUTTANIPPURATH HOUSE, MYLAKKADU, KOLLAM-691 571.

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2. METTILDA, D/O.BENNICHAN, KUTTANIPPURATH HOUSE, MYLAKKADU, KOLLAM-691 571.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts 27/3/2018

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OP(C).No. 541 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1: TRUE COPY OF THE AWARD ON 25.09.2010 IN ARB.REF.278/2009. EXT.P2; TRUE COPY OF THE SALE CERTIFICATE IN E.P.161/2011 ISSUED TO THE PETITIONER. EXT.P3: TRUE COPY OF THE ORDER DATED 31/3/2017 IN E.A.190/2015 IN E.P.161/2011. EXT.P4: TRUE COPY OF THE ORDER IN OP(C)3095/2016. EXT.P5: TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 22.05.2017 IN E.A.190/2015 IN E.P.161/2011. EXT.P6: TRUE COPY OF THE ORDER DATED 07.10.2017 IN E.A.45/2017 IN E.P.161/2011.

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RESPONDENT'S EXHIBITS:

NIL

/TRUE COPY/

P.S.TO JUDGE

sts 27/3/2018

ALEXANDER THOMAS, J.

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==================

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O.P(C).No. 541 of 2018

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==================

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Dated this the 5^th day of March, 2018 J U D G M E N T

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The prayers in this Original Petition (Civil) filed under the enabling

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provisions contained in Art.227 of the Constitution of India are as follows:

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“i) Set aside Ext.P-6 to the extent dismissing E.A.45/17 in E.P.No. 161/2011. ii) Direct the Court below to restore the E.A.190/15 in E.P.No. 161/2011.”

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Heard Sri.C.S.Manilal, learned counsel appearing for the petitioner. Though notice has been duly served on the respondents, there is no appearance for those parties.

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It is stated that the petitioner is the decree holder and the decree/award was put in execution and that the matter is in delivery stage. That E.A.No.190/2015 in E.P.No. 161/2011 filed for delivery was dismissed for default due to non-representation of the counsel, as per Ext.P-3 order dated 31.3.2017, as there was State wide boycott of the lawyers on the day in question (31.3.2017). That an application for restoration was also dismissed by the execution court as per the impugned Ext.P-6 order. It is in the light of these aspects that the petitioner has filed the instant Original Petition (Civil) with the abovesaid prayers.

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The impugned Ext.P-3 order dated 31.3.2017 on E.A.No.190/ 2017 in E.P.No.161/2011 reads as follows:

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“O R D E R

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No representation from Decree Holder. Today it posted for further steps as NFT. But not taken any steps. Time limit was fixed by the Hon'ble High Court. Even though Decree Holder/Petitioner is not co-operating. Hence EA dismissed.”

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O.P(C).541/18 - : 2 :-

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The petitioner had filed E.A.No.45/2016 for restoration of E.A.No.190/2017 in E.P.No. 161/2011 and the said plea for restoration has now been dismissed as per Ext.P-6 order.

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It is now submitted by Sri.C.S.Manilal, learned counsel appearing for the petitioner that, as a matter of fact, there was State wide boycott of lawyers on 31.3.2017 due to the call in that regard made by the Bar Councils in order to protest as against certain proposed amendments sought to be made in the Advocates Act and that because it was a State wide boycott made at the behest of the body of lawyers, the counsel for the petitioner was not in a position to attend the court on 31.3.2017 and it is only because of that, the said application for delivery was dismissed for default. In the light of these aspects, this Court is of the considered view that the matter requires interdiction. Accordingly, it is ordered that the impugned Ext.P-3 order and Ext.P-6 order to the extent it refuses to restore E.A.No.190/2016 will stand set aside. The matter in EA No.190/2015 in E.P.No.161/2011 will stand restored to the file of the execution court. The execution court will proceed further with E.A.No.190/2016 and after hearing both sides will pass orders in accordance with law. The petitioners will produce a certified copy of this judgment before the court below concerned for necessary information.

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With these observations and directions, the above Original Petition (Civil) stands finally disposed of.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE

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///True Copy///

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P.S. to Judge

M/S.Muthoot Vehicle and Assets Finance Ltd. v. B.Jose

Case brief

What is this about?

What did the court decide?

M/S.Muthoot Vehicle and Assets Finance Ltd. v. B.Jose

Case brief

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What the court decided

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