Disposed

Sreelatha, v. a.John

Kerala HC12 Jul 2019OP(C)/745/2019

Case brief

AI extract

What is this about?

This order addressed an original petition regarding execution proceedings while an appeal was pending restoration in the lower appellate court. The High Court directed the lower appellate court to dispose of the restoration application within one month and consequently deferred execution proceedings during this period.

What did the court decide?

Deferred execution proceedings pending the decision on the interlocutory application for restoration of the dismissed appeal by the lower appellate court.

Sreelatha, Vs a.John — Execution and Attachment | Kerala HC (2019)

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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 SUNIL THOMAS

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FRIDAY, THE 12TH DAY OF JULY 2019 / 21ST ASHADHA, 1941

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OP(C).No.745 of 2019

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AGAINST THE ORDER/JUDGMENT IN AS 35/2017 of SUB COURT, THIRUVALLA

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PETITIONER/1st APPELLANT:

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SREELATHA, AGED 45 YEARS W/O.SHAJI, ALUMTHARA KIZHAKKEKALAYIL HOUSE, PULLADU MURI, KOIPRAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.

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BY ADVS. SRI.T.P.PRADEEP ASHIK VISWANADH.C SRI.P.K.SATHEES KUMAR S.SREEDEV

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RESPONDENT/RESPONDENT:

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A.JOHN, ATHINILKKUNNATHIL HOUSE, VENNIKKULAM P.O., PURAMATTAM VILLAGE, THIRUVALLA VILLAGE, PATHANAMTHITTA-682101.

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BY ADVS. SRI.T.C.SURESH MENON SMT.G.AMBILY SRI.P.S.APPU

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP(C).No.745 of 2019

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JUDGMENT

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Petitioner is the defendant in O.S.No.3/2012 of Munsiff Court, Thiruvalla. It was decreed in favour of the plaintiffs. Appeal was preferred by the petitioner as A.S.No.35/2017, now pending before the Sub Court, Thiruvalla. It is reported that in the meanwhile, the appeal was dismissed for default. An application for

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restoration was filed, which is pending. The grievance of the petitioner is that in the meanwhile, the execution court is proceeding with the execution which if executed, will affect the valuable right of the petitioner to pursue the appeal.

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2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

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3. The learned counsel for the respondent contended that the petitioner had given an undertaking before the execution court to surrender the vacant

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possession of the building within a breathing time. He had orally undertaken to put in possession of the building to the decree holder on or before 26.02.2019.

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OP(C).No.745 of 2019

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It was recorded by the court below by order dated 31.01.2019. The contention of the petitioner is that in the light of the undertaking given by the petitioner, he is not entitled to pursue the appeal before the lower appellate court. Definitely this contention may be urged before the appellate court.

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4. Having considered the urgency expressed, I feel that O.P.(C). can be disposed of with a direction to the lower appellate court to take up and dispose of the interlocutory application for restoration, within a period of one month from the date of receipt of a copy of this judgment. If the application is allowed, the appeal shall be heard within three months thereafter. The execution proceedings will stand deferred during the above period, subject to the outcome of the IA for restoration.

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O.P.(C) is disposed of accordingly.

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Sd/-

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SUNIL THOMAS, JUDGE

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Pn 12/07

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OP(C).No.745 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 31.07.2017 IN OS NO.3/2012.

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EXHIBIT P2 TRUE COPY OF THE AS NO.35/2017 ON THE FILES OF THE SUB COURT, THIRUVALLA.

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EXHIBIT P3 TRUE COPY OF THE IA NO.762/18 IN AS NO.35/2017 ON THE FILES OF SUB COURT, THIRUVALLA.

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EXHIBIT P4 TRUE COPY OF THE EP NO.68/2017. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23.01.2019 IN EA NO.152/2018 IN EP 68/2017 ON THE FILES OF MUNSIFF'S COURT, THIRUVALLA.

Sreelatha, v. a.John

Case brief

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Sreelatha, v. a.John

Case brief

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