The Kerala High Court opined that the Courts must adjudicate on the substantial interest of the parties and not just dispose of cases numerically.
It observed that the Execution Court cannot dismiss an application merely because counsel or party was absent as firstly, there is no procedure for listing the cases for a trial with an advance list in execution, and secondly, there was no direction of the Court for appearance.
Brief Facts:
There was no representation for the Appellants on the day the case was listed, and the Execution Court marked the Appellant absent. Thereafter, the Application was dismissed for default.
The present appeals have been filed by the execution Applicant against the said order vide which Application of the Applicant under Order XXI Rule 99 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) was dismissed for default.
Observations of the Court:
It was observed that unless the Application was listed for appearance, merely because counsel or party was absent. The present case is also not one of those cases where the absence of the parties was continuous.
The High Court opined that the Courts must adjudicate on the substantial interest of the parties and not just dispose of cases numerically. The Courts must be sensitive especially when the absence is because of the laches or negligence on part of the Counsel.
The Bench ruled that a solitary instance cannot be a reason to dismiss an application and the Execution Court cannot dismiss the application as firstly, there is no procedure for listing the cases for a trial with an advance list in execution, and secondly, there was no direction of the Court for appearance.
The decision of the Court:
Based on the abovementioned reasons, the Kerala High Court set aside the order of the Execution Court and directed the parties to appear before the Execution Court.
Case Title: Muhammad Shanavas v. Radhakrishnan & Ors.
Coram: Hon’ble Mr. Justice A. Muhamed Mustaque, Hon’ble Mrs. Justice Shoba Annamma Eapen
Case No.: EX. FA NO. 15 of 2020 & FAO No. 23 of 2020
Advocates for Petitioner: Advs. Mr. AVM. Salahudin, Smt. A.D. Divya, Smt. M.P. Seetha, Smt. Emil Stanley
Advocate for Respondent: Adv. Sri. Rajesh Sivaramankutty
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