Allowed

P.K.Ratheendran v. Chandra Murali

Kerala HC14 Sept 2023OP(C)/223/2021

Case brief

AI extract

What is this about?

In an original petition, the High Court set aside an order of dismissal for want of prosecution in an execution petition, directing the lower court to resume proceedings without unnecessary delay.

What did the court decide?

The impugned Ext.P9 order is set aside and the petitioner's original petition is allowed. The countersigned execution petition is directed to be reopened and taken up for consideration.

P.K.Ratheendran Vs Chandra Murali — Execution and Attachment | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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THURSDAY, THE 14TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945

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OP(C) NO. 223 OF 2021

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PETITIONER/PETITIONER/DECREE HOLDER/PLAINTIFF:

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P.K.RATHEENDRAN
AGED 70 YEARS
S/O LATE SRI.M.K.KUTTAN,SANTHALAYAM,
TC.43/264,THOTTAM,MUTTATHARA VILLAGE, MANACAUD.P.O,
THIRUVANANTHAPURAM, PINCODE-695009.

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BY ADVS.
S.V.RAJAN
SRI.SANIL JOSE
SMT.SHIBI.K.P.
SRI.R.SANTHOSH (VARKALA)
SHRI.S.HEMANTH SANTHOSH
SRI.A.N.PREMLAL

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RESPONDENT/RESPONDENT/JUDGMENT DEBTOR/DEFENDANT:

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CHANDRA MURALI
AGED 56 YEARS
S/O KUTTAN,P.K.BHAVAN,T.C.43/1519(H), VIRUTHIVILAKATHU
MURI,MUTTATHARA VILLAGE,VALLAKKADAVU.P.O,
THIRUVANANTHAPURAM,PINCODE-695008.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 223 OF 2021

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JUDGMENT

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The petitioner impugns Ext.P9 order of the

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learned Principal Sub Judge, Thiruvananthapuram,
whereby, E.P.No.242/2008 in O.S.No.442/2002 has
been dismissed for want of prosecution.

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2.The learned counsel for the petitioner –

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Smt.Swetha P.Dilip, vehemently argued that the
records of this case will reveal that, even

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though the Execution Petition was once restored,

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there was no posting thereafter; and
consequently that her client, or counsel, could
not be present before the Execution Court. She
submitted that, in spite of this, in Ext.P9, it
is imputed that the decree holder was not
present and therefore, that the Execution
Petition is liable to be dismissed for default.

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3.The endorsements on file reveal that

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OP(C) NO. 223 OF 2021

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summons from this Court have been validly served
on the respondents. However, they have chosen
not to be present in person or to be represented
through counsel; thus inferentially guiding me
to the impression that he has nothing to offer
in opposition to the reliefs claimed by the
petitioner.

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4.I have examined Ext.P9 and as submitted
by Smt.Swetha P.Dilip, the sole reason stated
therein, for dismissal of the Execution Petition
is that the decree holder/petitioner was absent.
Factually, if, as stated by Smt.Swetha P.Dilip,
the Court had not listed the Execution Petition
after it was restored earlier, then certainly,
it is a matter which requires to be
reconsidered.

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In the afore circumstances and since the
respondent is not opposing this Original

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OP(C) NO. 223 OF 2021

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Petition, I allow it and set aside Ext.P9;
consequently, directing the learned Principal
Judge,Thiruvananthapuram,totakeup

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E.P.No.242/2008 in O.S.No.442/2002 and complete

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proceedings thereon in terms of law, without any
avoidable delay.

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Needless to say, this judgment will not

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stand in the way of the learned Sub Judge

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dealing with the matter in any manner as is

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necessary, including taking note of non

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appearance of the parties, if it is seen in

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future, leading to appropriate orders as
required.

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 Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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SAS

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OP(C) NO. 223 OF 2021

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APPENDIX OF OP(C) 223/2021

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PETITIONER’S EXHIBITS:

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`EXHIBIT P1`	`THE TRUE COPY OF THE EXECUTION PETITION` `NO.242/2008 IN OS NO.442/2002 DATED 24/3/2008` `ON THE FILE OF THE PRINCIPAL SUB` `COURT,THIRUVANANTHAPURAM`
`EXHIBIT P2`	`THE TRUE COPY OF THE RESPONDENT'S STATEMENT OF` `OBJECTION TO THE EP NO.242/2008 IN` `O.S.NO.442/2002 ON THE FILE OF THE PRINCIPAL` `SUB COURT,THIRUVANANTHAPURAM.`
`EXHIBIT P3`	`THE TRUE COPY OF THE EA NO.803/2015` `(APPLICATION FOR SENDING THE RECEIPT TO` `FSL)FILED BY THE PETITIONER IN EP NO.242/2008` `IN OS N0.442/2002 ON THE FILE OF THE PRINCIPAL` `SUB COURT,THIRUVANANTHAPURAM.`
`EXHIBIT P4`	`THE TRUE COPY OF THE EA NO.541/2018 IN EP` `NO.242/2008 IN O.S.NO.442/2002 ON THE FILE OF` `THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.`
`EXHIBIT P5`	`THE TRUE COPY OF THE RESTORATION` `APPLICATION,EA NO.649/2018 IN EP NO.242/2008` `IN OS NO.442/2002 DATED 10/10/2018 ON THE FILE` `OF THE PRINCIPAL SUB COURT,THIRUVANANTHAPURAM.`
`EXHIBIT P6`	`THE TRUE COPY OF THE ORDER DATED 29/3/2019 OF` `THE PRINCIPAL SUB COURT,THIRUVANANTHAPURAM IN` `EA NO.649/2018 IN EP NO.242/2008.`
`EXHIBIT P7`	`THE TRUE COPY OF THE E-COURT DIARY PRINT OUT` `(DAILY STATUS)DATED 29/3/2019 FOR E.A` `NO.649/2018 OF THE SUB` `COURT,THIRUVANANTHAPURAM.`
`EXHIBIT P8`	`THE TRUE COPY OF E-COURT DIARY PRINT OUT FROM` `THE SUB COURT,THIRUVANANTHAPURAM REGARDING THE` `CASE-STATUS DETAILS WITH RESPECT TO EXHIBIT P1` `EXECUTION PETITION (EP NO.242/2008).`
`EXHIBIT P9`	`THE TRUE COPY OF THE ORDER DATED 23/7/2019 IN` `EP NO.242/2008 ON THE FILE OF THE PRINCIPAL` `SUB COURT,THIRUVANANTHAPURAM.`

P.K.Ratheendran v. Chandra Murali

Case brief

What is this about?

What did the court decide?

P.K.Ratheendran v. Chandra Murali

Case brief

What is this about?

What did the court decide?

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