P.P.Ummer Koya vs Samuel Raphy John
2021 Latest Caselaw 20936 Ker

  OP(C).2092/19                       1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR.JUSTICE V.G.ARUN
  WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                        OP(C) NO. 2092 OF 2019
AGAINST THE ORDER/JUDGMENT IN OS 535/2016 OF PRINCIPAL MUNSIFF
                    COURT ,KOZHIKODE-II, KOZHIKODE
PETITIONER/S:

            P.P.UMMER KOYA
            AGED 53 YEARS
            S/O.K.T.ALI, PKR APARTMENTS, ERANGHOTH PARAMBA,
            MEENCHANDHA, ARAKKINAR.P.O., KOZHIKODE-673028.

            BY ADV ROY CHACKO



RESPONDENT/S:

     1      SAMUEL RAPHY JOHN,
            REPRESENTED BY GUARDIAN, FATHER, S/O.RAPHY JOHN
            ARAKKAL, RESIDING AT ARAKKAL HOUSE,
            PERAMANGALAM.P.O., THRISSUR-680545.

     2      K.ASHRAF,
            S/O.ABOOBACKER, VELLAMKANDI HOUSE, CHETTAM KUNNU,
            THALASSERY.P.O., KANNUR-670101.

            BY ADVS.
            P.V.ANOOP
            PHIJO PRADEESH PHILIP
            K.S.SREERAJ




     THIS    OP    (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
   OP(C).2092/19                            2



                               V.G.ARUN, J.
                -----------------------------------------------
                        O.P(C).No.2092 of 2019
                -----------------------------------------------
              Dated this the 6th day of October, 2021

                                 JUDGMENT

Petitioner is the judgment debtor in E.P.No.94 of 2018 ofo the

Munsiff's Court, Kozhikode. The execution petition is filed by the 1 st

respondent seeking to execute the ex parte decree in O.S.No.535 of

2016 permitting the 1st respondent to recover possession of plaint

schedule property with future mesne profits at the rate of

Rs.75,000/- per month from the date of suit till the date of delivery

of possession, or the expiration of three years from the date of

decree, whichever occurs first. The petitioner had filed an

application for setting aside the ex parte decree. The application was

filed with a delay of 29 days. The application was allowed on

condition of payment of cost of Rs.5,000/- within a period of one

month. The petitioner failed to pay the cost as directed. Instead, he

filed an application for enlargement of time by a further period of

two weeks. Pending that application, the execution was proceeded

with. On 26.3.2019 the Ameen filed a report stating that the

property was delivered to the 1st respondent on 25.3.2019. On

coming to know of this development, petitioner filed an application

on 26.3.2019 praying to set aside the report and the delivery kaichit.

On 26.3.2019, court passed Exhibit P9 order closing the execution

petition, after recording that delivery was effected. Exhibit P8

application filed by the petitioner was taken up on 27.3.2019 and

rejected in view of closure of the execution petition. This original

petition is filed seeking to quash Exhibits P9 and P10 orders and to

direct the execution court to consider Exhibit P8 application and pass

orders thereon in accordance with law.

2. Heard.

3. Learned counsel for the petitioner contended that for the

time being the petitioner will be satisfied by the execution court

being directed to consider Exhibit P8 application afresh. It is

contended that the application having been filed on 26.3.2019, the

court below ought to have passed orders on the application before

closing the execution petition. Even otherwise, the judgment debtor

having filed an application challenging the Ameen's report and

delivery, the execution court could not have summarily rejected the

application on the premise that the execution petition is closed after

recording delivery.

4. Learned counsel for the respondent contended that, delivery

having been effected and the execution petition closed,

consideration of Exhibit P8 application will be an empty formality.

5. Having heard the learned counsel, I find substance in the

contention that the judgment debtor having filed an application, the

court below ought to have considered the same and passed an order

on merits.

The original petition is hence disposed of directing the

execution court to consider Exhibit P8 application afresh and to pass

orders thereon within one month of receipt of a copy of this

judgment. It is made clear that I have not considered the merits of

the contentions raised by the parties and it is for the execution court

to take the decision in accordance with law. The parties shall appear

before the execution court on 29.10.2021.

Sd/-

V.G.ARUN, JUDGE

vgs

APPENDIX OF OP(C) 2092/2019

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 16.12.2017 PASSED BY THE MUNSIFF'S COURT, KOZHIKODE.

EXHIBIT P2 TRUE COPY OF I.A.4292/2018 PETITION TO SET ASIDE THE EX-PARTE DECREE IN O.S.535/2016, MUNSIFF'S COURT, KOZHIKODE.

EXHIBIT P3 TRUE COPY OF I.A.4291/2018 FOR CONDONATION OF DELAY IN FLING THE APPLICATION FOR SETTING ASIDE THE EX-PARTE DECREE.

EXHIBIT P4 TRUE COPY OF I.A.1311/2019 DATED 2.2.2019 FOR ADVANCING THE HEARING OF I.A.4291/2018 AND 4292/2018.

EXHIBIT P5 TRUE COPY OF THE EXECUTION PETITION (EP.94/2018) DATED 9.3.2018 IN O.S.535/2016.

EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 6.3.2019 FOR ENLARGEMENT OF TIME TO PAY THE COSTS.

EXHIBIT P7 TRUE COPY OF THE REPORT OF THE AMIN DATED 25.3.2019 EFFECTING DELIVERY OF PROPERTY.

EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 26.3.2019 PRAYING FOR SETTING ASIDE THE REPORT OF THE AMIN AND DELIVERY KYCHIT.

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 26.3.2019 PASSED BY MUNSIFF'S COURT,KOZHIKODE (EXECUTION SIDE)

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 27.3.2019 IN E.A.161/2019 IN E.P.94/2018 IN O.S.535/2016 BY MUNSIFF'S COURT, KOZHIKODE (EXECUTION SIDE).