Karunakaran Nambiar P.T vs Karunakaran Nambiar P.T
2021 Latest Caselaw 1348 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

              THE HONOURABLE MR. JUSTICE SATHISH NINAN

  WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                         CRP.No.11 OF 2021

AGAINST THE ORDER DATED 16.12.2020 IN EA 75/2018 IN EP 4/2007 IN
               OS 38/2003 OF SUB COURT, PAYYANNUR

                               -----


REVISION PETITIONERS/RESPONDENTS/DEFENDANTS:

      1       KARUNAKARAN NAMBIAR P.T.,
              S/O M.P.KARUNAKARAN, KANKOLE AMSOM, KALESWARAM,
              POST KANKOL, KANNUR DISTRICT.

      2       P.PARVATHI,
              W/O P.T.KARUNAKARAN NAMBIAR, KANKOLE AMSOM,
              KALESWARAM, POST KANKOL, KANNUR DISTRICT.

              BY ADVS.
              SRI.M.SASINDRAN
              SRI.SATHEESHAN ALAKKADAN

RESPONDENT:

              SYNDICATE BANK,
              PAYYANNUR BRANCH, REPRESENTED BY ITS MANAGER,
              PAYYANUR-670 307, KANNUR DISTRICT.


     THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 13.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                      SATHISH NINAN, J.
            ==================
                   C. R. P. No.11 of 2021
            ==================
           Dated this the 13th day of January, 2021

                              ORDER

Order restoring an execution petition that was

dismissed for default, is under challenge in this civil revision petition by the judgment debtors.

2. The suit for money filed in the year 2003

was decreed on 23.02.2005. In the year 2007, the

decree holder filed EP 4/2007 for realisation of

the decree debt by sale of immovable property. On

one reason or the other, the proceedings were

dragged or protracted. On 19.03.2018 to which date

the execution petition stood posted, consequent on

the non-representation for the decree holder, the

execution petition was dismissed for default.

3. Seeking restoration of the execution

petition, the decree holder filed EA 75/2018 under

Order XXI Rule 106 read with Section 151 of the

Code of Civil Procedure. As per the impugned order,

the execution court allowed the application and

restored the execution petition back to file.

4. The decree under execution having been

passed on 23.02.2005, a fresh execution petition

could not be maintained on the date of dismissal

since it would be beyond the period of limitation.

The application seeking restoration was filed under

Order XXI Rule 106 of CPC, well within the period

of 30 days stipulated under Order XXI Rule 106(3)

CPC. The execution court noticed that the EP stood

posted to 19.03.2018 for payment of amounts by the

judgment debtor and not for any steps to be taken

by the decree holder. The reason for non-

representation/non-appearance of the counsel for

the decree holder on 19.03.2018, was the omission

on the part of the counsel to whom the matter was

entrusted for representation. The said fact is

sworn to by the counsel who was appearing for the

decree holder Bank by way of an affidavit.

5. Restoration having been sought within the

time stipulated under the statute, the execution

court was right in having allowed the EA and

restored the execution petition back to file. The

decisions relied on by the learned counsel for the

petitioner has absolutely no application to the

facts at hand since those were cases where the

pending execution petition was dismissed either as

not pressed or for default and the subsequent

execution petition filed beyond the period of

limitation was sought to be treated as an

application seeking revival of the earlier

execution petition or as continuation of the

earlier execution petition. As noticed supra, the

present application is one filed under Order XXI

Rule 106 CPC seeking restoration of the execution

petition dismissed for default; and the restoration

application is filed well within the time

stipulated.

This civil revision petition lacks merits and

is accordingly dismissed. The EP being of the year

2007, the execution court shall expedite the EP and

take it to a logical conclusion at the earliest.

Sd/-

SATHISH NINAN JUDGE

kns/-

                                    //True Copy//                      P.S. to Judge