Kerala High Court
[email protected] vs Philomina Antony on 31 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
OP(C) NO. 617 OF 2019
IN E.P.NO.98/2016 IN OS 444/2006 OF PRINCIPAL SUB COURT,
ERNAKULAM
PETITIONERS/ JUDGMENT DEBTORS 2,4,5,6,8 & 10.
1 [email protected],
AGED 52 YEARS
S/O E.J.ANTONY,EARATHARA HOUSE,
KANATIPARAMBIL,
NEAR B.O.C.M.M.ROAD,KOCHI-14.
2 MR.BEENA,
AGED 50 YEARS,
D/O.E.J.ANTONY,EARATHARA HOUSE,
KANATIPARAMBIL,NEAR B.O.C.M.M.ROAD,
KOCHI-14.
3 MRS.DAISY,
AGED 47 YEARS,
EARATHARA HOUSE,KANATIPARAMBIL,
NEAR B.O.C.M.M.ROAD,KOCHI-14.
4 MRS.MOLY,
AGED 45 YEARS,
D/O.E.J.ANTONY,EARATHARA HOUSE,
KANATIPARAMBIL,NEAR B.O.C.M.M.ROAD,
KOCHI-14.
5 MR.FRANCIS @ SHAJI,
AGED 39 YEARS,
S/O.E.J.ANTONY,EARATHARA HOUSE,
KANATIPARAMBIL,NEAR B.O.C.M.M.ROAD,
KOCHI-14.(DIED).
6 MRS.RANI @ ROSSY,
AGED 52 YEARS,
D/O.E.J.ANTONY,EARATHARA HOUSE,
KANATIPARAMMBIL,
NEAR B.O.C.M.M.ROAD,
KOCHI-14.
BY ADVS. E.N.VISHNU NAMBOODIRI
P.SANKARAN NAMPOOTHIRI
O.P.(C)No.617/2019
-:2:-
NARAYANAN P POTTY
RESPONDENTS/ DECREE HOLDERS AND ADDL. DECREE HOLDERS:
1 PHILOMINA ANTONY,
W/O.ANTONY,
KLOLATHARA HOUSE,SHASTRI ROAD,
VADUTHALA,KOCHI-23.
2 TREESA JOHN,
AGED 78 YEARS,
W/O.P.J.JOHN,NEAR MATCHBOX COMPANY,
NAMBAZHAKKADU.P.O,GURUVAYOOR,
THRISSUR DISTRICT.
3 KARMALI GEORGE,
AGED 75 YEARS,
W/O.K.S.GEORGE,KURISINGAL HOUSE,
KANIYAMPUZHA BRIDGE,ELOOR NORTH.
4 SALEENA ANTONY,
AGED 63 YEARS,
W/O.P.V.ANTONY,PARAYANTHARA HOUSE,
KRISHNASWAMI ROAD,PULLEPPADY,
COCHIN-35.
5 SINDHU RAVICHANDRAN,
AGED 43 YEARS,
W/O MR.RAJU JOSEPH,RESIDING AT 40/5034,
THOPPIL LANE,BROADWAY,ERNAKULAM-682031.
6 PRADEESH CHACKO,
AGED 45 YEARS,
S/O LATE.MR.CHACKOCHAN,
RESIDING AT CHERUPARAMBIL HOUSE,
CHUNANGAMVELY,
ERUMATHALA.P.O,ALUVA,
ERNAKULAM-683112.
BY ADVS. SRI.RAJU JOSEPH
SRI.SHAJI CHIRAYATH
SMT.JIJI M. VARKEY
SMT.SAVITHA GANAPATHIYATAN
SRI.M.M.SHAJAHAN
O.P.(C)No.617/2019
-:3:-
SMT.BHOOMIKA SAJAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)No.617/2019
-:4:-
Dated this the 31st day of August,2022
JUDGMENT
The original petition is filed, inter alia, to direct the
Court of the Principal Subordinate Judge, Ernakulam, to
issue the carbon copy of the order dated 23.02.2019,
ordering the delivery of the property in E.P.No.98/2016
in O.S.No.444/2006, and until such time, all coercive
proceedings be kept in abeyance.
2. The petitioners' case, in a nutshell, relevant for
the determination of the original petition is; they are the
judgment debtors 2, 4, 5, 6, 8 & 10 in the above
execution petition filed by the respondents. Ext.P1 ex
parte final decree was passed against the petitioners.
Even though the petitioners have filed A.S.No.156/2012
before the Court of the District Judge, Ernakulam, the
appeal was dismissed. The petitioners' application for
restoration of the appeal was also dismissed. The
petitioners have filed F.A.O.No.200/2016 before this
Court. The respondents 1 to 4 have executed Ext.P1
O.P.(C)No.617/2019
final decree and E.P.No.47/2012 was closed. A year later,
respondents 1 to 4 have filed another execution petition
as E.P.No.98/2016. The petitioners have objected to the
second execution petition by filing Ext.P9 written
objection. However, the court below, without
considering the objections of the petitioners, has ordered
delivery of the property by proceedings dated
23.06.2019. The petitioners have applied for the
certified copy of the order; but the same has not been
received. In the meantime, the respondents 5 and 6 are
hastily taking steps to get the property delivered. Hence,
the original petition.
3. Heard; Sri. E.N.Vishnu Namboodiri, the learned
counsel appearing for the petitioners. Sri. Raju Joseph
and Sri. Shaji Chirayath, the learned counsel appearing
for the respondents.
4. The point is whether there is any illegality or
irregularity in the proceedings adopted by the court
below?.
O.P.(C)No.617/2019
5. When the original petition came up for
consideration on 25.02.2019, this Court admitted the
original petition and issued notice to the respondents.
Further proceedings in E.P.No.98/2016 was stayed.
6. The respondents have filed E.P.No.98/2016, to
execute the final decree. The petitioners have
challenged the maintainability of the execution petition.
The court below has proceeded with execution petition
and ordered the delivery of the property on 23.09.2019.
It is at that point of time that the petitioners prayed that
they may be issued with carbon copy of the order and
until such time the execution proceeding be kept in
abeyance.
7. We are today on 31.08.2022. Three long years
have lapsed. I do not find any reason to direct the court
below to issue the carbon copy of the order dated
23.02.2019 because I assume, that the order would be
well-ready. I don't find any necessity for this Court to
issue any direction, in exercise of its supervisory powers
O.P.(C)No.617/2019
under Article 227 of the Constitution of India, to issue
the carbon copy of the order at this stage. I also don't
find any ground to stay further proceedings in
E.P.No.98/2016, on the ground that the petitioners have
not received the carbon copy. Therefore, without
prejudice to the rights of the petitioners to work out
their remedies in accordance with law, this original
petition is dismissed.
Sd/-
C.S.DIAS,JUDGE
DST/31.08.22 //True copy/
P.A.To Judge
O.P.(C)No.617/2019
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 TRUE PHOTOCOPY OF FINAL DECREE FOR
PARTITION IN I.A.NO.3415/2010 IN
O.S.444/2006.
EXHIBIT P2 TRUE PHOTOCOPY OF MEMORANDUM OF APPEAL
IN F.A.O.200/2016 PENDING BEFORE THIS
HONOURABLE COURT.
EXHIBIT P3 TRUE PHOTOC0PY OF THE ORDER DATED
31.05.2012 OF THE PRINCIPAL SUB
COURT,ERNAKULAM IN E.P.47/2012 IN
I.A.3415/2010 IN O.S.444/2006.
EXHIBIT P4 TRUE PHOTOCOPY OF SALE DED NO.1708/2015
DATED 17.4.2015 OF ERNAKULAM S.R.O.
EXHIBIT P5 TRUE PHOTOCOPY OF SECOND EXECUTION
PETITION FILED AS E.98/2016 IN
O.S.NO.444/2006 ON THE FILE OF
P.RINCIPAL SUB COURT,ERNAKULAM.
EXHIBIT P6 TRUE PHOTOCOPY OF E.A.NO.859/2017 IN
E.P..NO.98/2016 IN O.S.444/2006 ON THE
FILE OF PRINCIPAL SUB COURT,ERNAKULAM.
EXHIBIT P7 TRUE PHOTOCOPY OF JUDGMENT DATED
7.11.2017 OF THIS HONOURABLE COURT IN
OP(C)3143/2017.
EXHIBIT P8 TRUE PHOTOCOPY OF ORDER DATED 6.1.2018
OF PRINCIPAL SUB COURT,ERNAKULAM IN
E.A.1022/2017 AND 1023/2017 IN
E.A.NO.859/2017 IN E.P.98/2016 IN
O.S.NO.444/2006.
EXHIBIT P9 TRUE PHOTOCOPY OF OBJECTION TO EXHIBIT
P5 SECOND EXECUTION PETITION.
EXHIBIT P10 TRUE PHOTOCOPY OF IMPLEADING PETITION
FILED BY RESPONDENTS 5 AND 6 FOR
GETTING IMPLEADED AS ADDITIONAL DECREE
HOLDERS IN EXHIBIT P5 SECOND EXECUTION
PETITION.
EXHIBIT P11 TRUE PHOTOC0PY OF PETITION FOR
AMENDMENT OF EXECUTION PETITION FILED
BY RESPONDENTS 5 AND 6.
O.P.(C)No.617/2019
EXHIBIT P12 TRUE PHOTOCOPY OF OBJECTION TO EXHIBIT-
P11.
EXHIBIT P13 TRUE PHOTOCOPY OF PETITION FILED BY
RESPONDENTS 5 AND 6 FOR ARREST AND
DETENTION OF JUDGMENT DEBTORS.
EXHIBIT P14 TRUE PHOTOCOPY OF COUNTER TO EXHIBIT P-
EXHIBIT P15 TRUE COPY OF THE ORDER DATED 23/02/2019
OF PRINCIPAL SUB COURT, ERNAKULAM IN
E.A 679/2018 IN E.P 98/2016 IN O.S
444/2006
RESPONDENT EXHIBITS: NIL
