Shaji K.H vs P.J.Thomas
2021 Latest Caselaw 18896 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR.JUSTICE V.G.ARUN
     FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
                       OP(C) NO. 1299 OF 2021
 AGAINST THE ORDER/JUDGMENT IN OS 40/2019 OF SUB COURT, THODUPUZHA,
                                IDUKKI
PETITIONER/S/JUDGMENT DEBTOR:

           SHAJI K.H
           AGED 47 YEARS
           S/O. HAMEED, KUZHIMANDAPATHIL VEEDU, THODUPUZHA P.O,
           OLAMATTAM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK,
           IDUKKI DISTRICT, PIN - 685585.

           BY ADV M.V.RAJENDRAN NAIR



RESPONDENT/S/DECREE HOLDER:

           P.J.THOMAS
           S/O. OUSEPH, THAYYIL HOUSE, THODUPUZHA EAST P.O,
           THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT,
           PIN - 685585

           BY ADVS.
           V.RAJENDRAN (PERUMBAVOOR)
           N.RAJESH
           GOPAKUMAR P.




     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 1299 OF 2021
                                2



                          JUDGMENT

The petitioner is the defendant in O.S.No.201 of 2019

and is aggrieved by the exparte decree passed against him.

The petitioner has moved an application for setting aside

exparte decree. In the meanwhile, the decree is being

executed by filing E.P.No.32 of 2021. The decree require the

defendants to vacate the plaint schedule property within one

month, failing which the plaintiff is entitled to resort to legal

remedies. Further the plaintiff is entitled to recover costs of

the suit from the defendant.

2. Despite the decree, the petitioner failed to vacate

the plaint schedule property. Hence, the respondent filed

the execution petition with the prayer to evict the petitioner

from the decree schedule property by deputing an Amin from

the Court and to deliver possession of the property to the

decree holder. The further prayer is to recover the cost of OP(C) NO. 1299 OF 2021

Rs.1,88,436/-, by attachment and sale of movable articles

belonging to the petitioner.

3. The learned Counsel for the petitioner submitted

that the limited relief sought is to keep in abeyance the

further proceedings in the execution petition till the

application for setting aside the exparte decree is considered

and orders passed. It is pointed out that the petitioner was

laid up with jaundice when the suit was listed for trial and

thereafter he was remanded to custody in connection with a

criminal case. Hence, he failed to appear before the court on

the date fixed for evidence and there occurred delay in filing

the application for setting aside exparte decree. According to

the learned counsel, the respondent will not be put to any

prejudice by the prayer being allowed.

4. Per contra, learned Counsel for the respondent

submitted that the original petition itself is not maintainable OP(C) NO. 1299 OF 2021

and is beyond the scope of the supervisory jurisdiction

vested with this Court under Article 227 of the Constitution

of India. It is submitted that the trial court having not

committed any impropriety or illegality, this Court is not

expected to intervene, merely for the asking. On merits it is

contended that the only defense set up in the written

statement was that, as per the terms of the agreement

entered into between the parties, the petitioner is entitled to

continue in the plaint schedule property till 10.04.2020. As

that date is over, the petitioner has no vestige of right to

continue. Being so, the prayer for keeping in abeyance, the

execution proceedings is malafide. As regards the execution

with regard to the monetary part, the learned Counsel

submitted that the petitioner can raise his contentions before

the execution court.

6. Having heard the learned Counsel and having

considered the contentions urged in the suit, as also the OP(C) NO. 1299 OF 2021

reasons stated in the application for setting aside the exparte

decree, I find substantial merit in the contentions urged by

the learned Counsel for the respondent. The specific

contention urged in the written statement being that the

petitioner is entitled to continue in occupancy of the plaint

schedule premises till 10.04.2020 and the said period having

elapsed, the execution cannot be kept on hold, awaiting the

resurrection of a lost cause.

The original Petition is hence dismissed, reserving the

petitioner's liberty to pursue his application for setting aside

the ex-parte decree and the right to raise all contentions

before the execution court.

Sd/-

V.G.ARUN JUDGE

RK OP(C) NO. 1299 OF 2021

APPENDIX OF OP(C) 1299/2021 PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PLAINT IN OS 40/2019 OF SUB COURT, THODUPUZHA.

Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT PLAINT IN OS 40/2019 OF SUB COURT, THODUPUZHA.

Exhibit P3 TRUE COPY OF THE AGREEMENT DATED 10.07.2019.

Exhibit P4 TRUE COPY OF THE PLAINT IN OS 201/2019 OF THE MUNSIFF'S COURT, THOUDUPUZHA.

Exhibit P5 TRUE COPY OF THE WRITTEN STATEMENT IN OS 201/2019 OF MUNSIFF'S COURT, THODUPUZHA.

Exhibit P6 TRUE COPY OF THE EP 32/2021 OF SUB COURT, THODUPUZHA.

Exhibit P7 TRUE COPY OF THE NOTICE IN THE EP.

32/2021

Exhibit P8 TRUE COPY OF THE PETITION IN I.A.NO.11/2021 IN O.S.NO.40/2019 OF THE SUB COURT, THODUPUZHA.

Exhibit P9 TRUE COPY OF THE PETITION IN IA.NO.12/2021 IN OS.NO.40/2019 OF THE SUB COURT, THODUPUZHA.

Exhibit P10 TRUE COPY OF THE ORDER DATED 04/08/2021 IN E.A.NO.53/2021 OF THE SUB COURT, THODUPUZHA.