Ratheeshkumar P.K vs Sreedev K.K
2021 Latest Caselaw 8739 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

           THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

 TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

                    OP(C).No.642 OF 2021

   IN   E.A.NO.21/2019 IN E.P.NO.48/2015 OF MUNSIF COURT,
                        KANJIRAPPALLY


PETITIONER/PETITIONER/PLAINTIFF:

            RATHEESHKUMAR P.K.,
            AGED 40 YEARS,
            S/O.P.P.KUNJU KUNJU, PULIMMOOTTIL HOUSE,
            MUTTAPALLY P.O., ERUMELY SOUTH VILLAGE,
            KANJIRAPALY TALUK, KOTTAYAM DISTRICT.

            BY ADV. SRI.SIJO PATHAPARAMBIL JOSEPH

RESPONDENT/RESPONDENT/DEFENDANT:

            SREEDEV K.K.,
            AGED 58, POVATHINKAL HOUSE, MUTTAPALLY KARA,
            ERUMELY SOUTH VILLAGE, KANJIRAPALLY TALUK,
            KOTTAYAM DISTRICT 686 524


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
16.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 O.P.(C)No.642/2021

                                       -:2:-




                     Dated this the 16th day of March,2021

                             J U D G M E N T

The petitioner is the judgment debtor in

E.P.No.48/2015 on the file of Munsiff

Court,Kanjirapally. The execution proceedings were

dismissed for default at a time when return of

warrant was being awaited. On the ground that steps were not taken for issue of warrant, the

court below dismissed the execution petition for

default. It was later restored on the motion of

the decree holder, who is the respondent herein.

By the impugned order (Ext.P5) dated 03.12.20219,

the execution petition was restored to file. The

legality of Ext.P5 is challenged by the petitioner

in this proceeding instituted under Article 227 of the Constitution of India.

2. I heard the learned counsel for the

petitioner.

3. The learned counsel for the petitioner

submits that the warrant was issued by the court

below without hearing the judgment debtor. In

fact, that contention does not arise for

consideration in this proceeding inasmuch as by O.P.(C)No.642/2021

the impugned order, the execution proceedings were restored to file under the inherent power possessed

by the court below. Whether he was given

opportunity to contest the proceeding which

resulted in issue of warrant is not a matter which

could be adjudicated in this proceeding now.

4. After hearing the learned counsel for the

petitioner, I do not find any illegality or

impropriety in the order passed by the court

below. Quite naturally when the execution petition

has gone for default, the court below in exercise

of the inherent power restored the proceeding for

ends of justice. The order is unassailable under

law.

In the result, original petition fails and it

is dismissed.

All pending interlocutory applications will

stand closed.

Sd/-

                                          T.V.ANILKUMAR,JUDGE

DST                                                                 //True copy/

                                                                   P.A.To Judge
 O.P.(C)No.642/2021






                         APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE EXECUTION PETITION

PENDING AS EP 48/2015 OF THE MUNSIFF COURT, KANJIRAPALLY.

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 16.3.2019 IN EP 48/2015 OF THE MUNSIFF COURT, KANJIRAPALLY.

EXHIBIT P3 A TRUE COPY OF THE APPLICATION FILED BY THE COUNSEL FOR THE RESPONDENT AS EA 21/2019 FOR RESTORING EP 48/2015 OF THE MUNSIFF COURT, KANJIRAPALLY.

EXHIBIT P4 A TRUE COPY OF OBJECTION FILED BY THE PETITIONER TO EA 21/2019 BEFORE THE MUNSIFF COURT, KANJIRAPALLY.

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 3.12.20219 IN EA 21/2019 OF THE MUNSIFF COURT, KANJIRAPALLY.

EXHIBIT P6 A TRUE COPY OF THE B DIARY PROCEEDINGS IN EP 48/2015 OF THE MUNSIFF COURT, KANJIRAPALLY TILL 3.2.2020

RESPONDENTS' EXHIBITS: NIL