Shailaja vs Shailaja
2021 Latest Caselaw 11154 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                    OP(C).No.848 OF 2021

  AGAINST THE ORDER DATED 29.03.2021 IN E.A.NO.119/2021 IN
 E.P.NO.352/2011 IN O.S.NO.671/1993 OF PRINCIPAL SUB COURT,
                          PALAKKAD


PETITIONER/RESPONDENT:

            SHAILAJA,
            AGED 57 YEARS,
            W/O.SUKUMARAN, PUZHAKKAL, KANNADI, PALAKKAD.

            BY ADV. SRI.VINOD KUMAR.C

RESPONDENT/PETITIONER:

            RAMASWAMY,
            S/O.APPUCHAMI, KADAMTHURUTHU KINNASSERY,
            PALAKKAD-686001.

            BY ADV. SRI.C.E.UNNIKRISHNAN

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 O.P.(C)No.848/2021

                                     -:2:-




                      Dated this the 7th day of April,2021

                              J U D G M E N T

This original petition is filed by the

judgment debtor in E.P.No.352/2011 in

O.S.No.671/1993 pending on the file of Sub Court,

Palakkad, seeking to set aside Ext.P14. The decree

sought to be executed before the court below is one for specific performance of contract of sale.

2. It is submitted by the learned counsel

for the petitioner that change in the description

of boundary as well as survey number of the suit

property was pointed out before the court below

and ultimately, the issue as to identity came to

be challenged before this Court in W.P.

(C)No.15256/2010. Consequent upon Ext.P8 judgment

in the said writ petition, a commission was taken

out to locate the boundary and a report was filed.

3. It is further submitted that the

petitioner filed objection to the commission

report which was not taken notice of by the court

below and consequently, the matter again came up

before this Court which culminated in rendition of

Ext.P11 judgment dated 21.11.2018. This Court O.P.(C)No.848/2021

directed the court below to decide the issue after

considering the objection raised by the judgment

debtor.

4. The grievance expressed by the petitioner

is to the effect that even after Ext.P11 judgment

passed by this Court, the petitioner was not given

sufficient opportunity and Ext.P14 order was

passed without application of mind. It is

submitted that the certified copy of Ext.P14 order

is yet to be delivered.

5. I heard the learned counsel for the

respondent as well.

6. Looking at Ext.P14 order, I do not find

that the court below passed a considered order.

The objections raised by the petitioner were not

specifically dealt with therein.

7. The learned counsel for the petitioner

submitted that the court below may be directed to

take up the issue as to identity of property in

accordance with law and decide the matter afresh

after giving parties sufficient opportunity.

8. The learned counsel for the respondent

insisted that a time frame may be fixed so that

the matter may not be further delayed at all. O.P.(C)No.848/2021

9. After hearing the submissions made on

behalf of the parties, I am of the opinion that

Ext.P14 order has to be set aside and the court

below is to be called upon to decide the issue on

hand considering the objections raised by the

petitioner in Ext.P12 after hearing parties and in

accordance with law.

In the result, original petition is disposed

of in the above terms. It is directed that the

court below shall put in all sincere efforts to

dispose of the execution petition on or before

25.05.2021.

All pending interlocutory applications will

stand closed.

Sd/-

                                    T.V.ANILKUMAR,JUDGE

DST                                                     //True copy/

                                                       P.A.To Judge
 O.P.(C)No.848/2021






                         APPENDIX
PETITIONER'S EXHIBITS:



EXHIBIT P1           TRUE COPY OF AGREEMENT DATED
                     05.12.1992.

EXHIBIT P2           TRUE COPY OF PLAINT IN O.S.NO.671/1993.

EXHIBIT P3           TRUE COPY OF DECREE IN O.S.NO.671/1993.

EXHIBIT P4           TRUE COPY OF OBJECTION.

EXHIBIT P5           TRUE COPY OF ORDER DATED 26.11.2009.

EXHIBIT P6           TRUE COPY OF DRAFT SALE DEED.

EXHIBIT P7           TRUE COPY OF ORDER IN 3402/2000.

EXHIBIT P8           TRUE COPY OF JUDGMENT IN WP(C)
                     15256/2010.

EXHIBIT P9           TRUE COPY OF COMMISSIONERS REPORT.

EXHIBIT P10          TRUE COPY OF ORDER IN EP 352/2011 DATED
                     27.06.2018.

EXHIBIT P11          TRUE COPY OF JUDGMENT IN OP(C)
                     1685/2018.

EXHIBIT P12          TRUE COPY OF OBJECTION TO COMMISSIONERS
                     REPORT.

EXHIBIT P13          TRUE COPY OF EA 119/2021.

EXHIBIT P14          TRUE COPY OF EXTRACT OBTAINED FROM E
                     COURT PORTAL.

EXHIBIT P15          TRUE COPY OF CASE DETAILS OBTAINED FROM
                     E COURT PORTAL.


RESPONDENTS' EXHIBITS: NIL