Balakrishnan vs Moideen Haji
2022 Latest Caselaw 671 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
 FRIDAY, THE 14TH DAY OF JANUARY 2022 / 24TH POUSHA, 1943
                       OP(C) NO. 85 OF 2022
   AGAINST THE ORDERS IN E.A.NOS.741&742 OF 2021 IN OS
                  11/2019 OF SUB COURT, KOYILANDY
PETITIONER/DEFENDANT:

            BALAKRISHNAN, AGED 71 YEARS
            S/O.CHANDUKUTTY, MANGOTUKUNIYIL HOUSE,
            PANTHALAYANI, AMSOM DESAM,
            KOYILANDY TALUK-673 305.

            BY ADVS.
            K.I.MAYANKUTTY MATHER
            KALLIYANI KRISHNA B.

RESPONDENT/PLAINTIFF:

            MOIDEEN HAJI, AGED 74 YEARS,
            S/O.AMMAD HAJI, MANIKOTH HOUSE,
            IRIGATH AMSOM, KULUPPA DESOM,
            KOYILANDY TALUK, IRINGATH P.O,
            KOZHIKODE DISTRICT-673 523.

     THIS    OP    (CIVIL)    HAVING   COME   UP    FOR    ADMISSION   ON
14.01.2022,    THE    COURT    ON   THE   SAME     DAY    DELIVERED    THE
FOLLOWING:
 O.P.(C).No.85 of 2022

                            2




                        JUDGMENT

This Original Petition has been filed

under Article 227 of the Constitution of India

seeking early disposal of I.A.Nos.1 and 2 of

2021 in O.S.No.11/2019, pending before the Sub

Court, Koyilandy.

2. Heard the learned counsel for the

petitioner.

3. The petitioner herein wants to set

aside the ex-parte decree for realisation of

Rs.32,75,000/- after condoning the delay of

765 days. The prayer in this Original Petition

is a direction to the Sub Court, Koyilandy to

consider and pass orders in I.A.Nos.1 and 2 of

2021 in O.S.No.11/2019 at the earliest. The

further prayer is to stay of execution of the

decree till then.

4. Having considered the minimum prayer O.P.(C).No.85 of 2022

for direction to consider I.A.Nos.1 and 2 of

2021 in O.S.No.11/2019, I am inclined to grant

the same.

5. Therefore, there shall be a direction

to the Sub Court, Koyilandy to consider

I.A.Nos.1 and 2 of 2021 in O.S.No.11/2019 and

pass orders, within a period of two months

from the date of receipt of copy of this

judgment or its production by the parties

concerned.

6. The learned counsel for the petitioner

prayed for stay of execution of the decree

till then. It appears that ex-parte decree

passed for a huge sum of Rs.32,75,000/- and

these petitions were filed at the time, when

the Execution Petition was posted for sale to

proceed to clear debt, delayed tactics smells

in this context, though not established.

Therefore, there shall be a stay in executing

the decree till the disposal of the I.A.Nos.1 O.P.(C).No.85 of 2022

and 2 of 2021 in O.S.No.11/2019, on condition

that the petitioner herein shall deposit or

pay Rs.25,000/- as cost to the plaintiff, the

respondent herein, within 15 days. It is

specifically ordered further that if the cost

as ordered is not paid, the stay will not be

in operation and the Execution Court is at

liberty to execute the decree deeming that

there is no stay to execute the decree.

Registry shall forward a copy of this

judgment to the Sub Court, Koyilandy within

seven days.

This Original Petition is disposed of,

accordingly.

Sd/-

A.BADHARUDEEN, JUDGE.

ww O.P.(C).No.85 of 2022

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE EX-PARTE JUDGMENT IN O.S. 11/2019 - SUB COURT, KOYILANDY.

EXHIBIT P2 TRUE COPY OF E.P.NO.66/2019 - SUB COURT, KOYILANDY.

EXHIBIT P3 TRUE COPY OF E.A.NO.742/2021 (I.A.NO.2/2021) IN OS NO.11/2019 - SUB COURT, KOYILANDY.

EXHIBIT P4 TRUE COPY OF EA NO.741/2021 (IA NO.1/2021) IN OS NO.11/2019 - SUB COURT, KOYILANDY.

EXHIBIT P5 TRUE COPY OF THE MEDICAL CERTIFICATE.

EXHIBIT P6 TRUE COPY OF EA NO.189/2021 IN EP 66/2019 IN OS 11/2019 - SUB COURT, KOYILANDY.