Thankachan Kolencherry vs Thressiamma Alias Tessy
2021 Latest Caselaw 2283 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                 &

                THE HONOURABLE MR.JUSTICE C.S.DIAS

   WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

                      OP (FC).No.146 OF 2020

            O.P.NO.838/2016 OF FAMILY COURT,ERNAKULAM


PETITIONER/JUDGMENT DEBTOR:

             THANKACHAN KOLENCHERRY
             AGED 61 YEARS
             S/O. PAULO KOLENCHERY, SARIKAS VILLA,
             CHERUPILLY LANE, AZAD ROAD, KOCHI-17,
             ERNAKULAM DISTRICT.

             BY ADVS.
             SRI.ABRAHAM P.GEORGE
             SMT.M.SANTHY

RESPONDENT/DECREE HOLDER:

             THRESSIAMMA ALIAS TESSY
             AGED 61 YEARS
             NOW RESIDING AT HVG, 12, AKATHUPADAM ROAD,
             THIRUVANKULAM VILLAGE, KANAYANNUR TALUK.
             PIN - 682305

             BY ADVS. SRI.VARGHESE C.KURIAKOSE
                      SRI.SUSANTH SHAJI

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD            ON
20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (FC).No.146 OF 2020              2




                               JUDGMENT

Dated this the 20th day of January 2021

A.Muhamed Mustaque, J.

This original petition is filed by the petitioner, challenging Ext.P7

order. By Ext.P7 order, the application filed by the petitioner to recall the

order of delivery of the schedule property with police assistance, has been

dismissed by the Family Court, Ernakulam.

2. The petition was filed by the respondent herein for mandatory

injunction to evict the petitioner from the decree schedule property. It

appears that it was an ex-parte decree and in execution of the decree,

delivery was ordered. In order to recall the order of delivery of the

schedule property, an application has been filed by the petitioner under

Section 151 of the Code of Civil Procedure, 1908. It appears that the

application filed to set aside the ex-parte decree has been dismissed.

3. The proper remedy of the petitioner is to challenge the order,

dismissing the application to set aside the ex-parte decree and obtain

relief from the Appeal Court. We do not find any reason to interfere with

the impugned order in exercise of power under Article 227 of the

Constitution of India.

Accordingly, the Original Petition is dismissed.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

C.S.DIAS JUDGE Bb/20/1/2021

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE PHOTOCOPY OF THE EXECUTION PETITION - E.P.NO.24/2017 FILED BY THE DECREE HOLDER.

EXHIBIT P2 THE TRUE PHOTOCOPY OF THE COMPROMISE AGREEMENT SIGNED BY THE PARTIES IN OP NO. 587/2014.

EXHIBIT P3 THE OBJECTION FILED BY THE JUDGMENT DEBTOR IN THE EXECUTION PETITION-E.P.NO.24/2017.

EXHIBIT P4 TRUE COPY OF THE EA NO.185/2019 FILED BY THE JUDGMENT DEBTOR PRAYING TO RECALL THE ORDER DATED 16.11.2019.

EXHIBIT P5 TRUE COPY OF THE EA NO.183/2019 FILED BY THE JUDGMENT DEBTOR PRAYING TO KEEP THE ORDER DATED 16.11.2019 IN ABEYANCE.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT PASSED BY THE HON'BLE HIGH COURT IN OP(FC) 698/19.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 20.2.2020 DISMISSING EXT.P4.

EXHIBIT P8 TRUE PHOTOCOPY OF THE ORDER DATED 23.12.2019 CLOSING EXT.P5.

RESPONDENT'S EXHIBITS: NIL

//True Copy//

P.A. To Judge

Bb