Kerala High Court
Dayumma vs Abdul Khader on 22 August, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:64001
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 22ND DAY OF AUGUST 2025 / 31ST SRAVANA, 1947
FAO NO. 82 OF 2025
AGAINST THE ORDER DATED 30.06.2025 IN EA NO.229 OF
2025 IN E.A.NO.200 OF 2025 OF SUB COURT, CHAVAKKAD
E.P.NO.35 OF 2025 IN O.S.NO.44 OF 2014 OF SUB COURT,
CHAVAKKAD
APPELLANT/CLAIM PETITIONER:
DAYUMMA,
AGED 75 YEARS, W/O HASSAN HAJI, RESIDING AT
KANNATH HOUSE, VAILATHOORDESHAM, VAILATHOOR
VILLAGE,CHAVAKKAD TALUK, VAILATHOOR P.O.,THRISSUR
DISTRICT., PIN - 679563
BY ADV SMT.PARVATHI
RESPONDENTS/DEFENDANTS:
1 ABDUL KHADER,
AGED 61 YEARS, S/O HASSAN HAJI, RESIDING AT
KANNATH HOUSE, VAILATHOORDESHAM, VAILATHOOR
VILLAGE, CHAVAKKAD TALUK, VAILATHOOR P.O.,
THRISSUR DISTRICT., PIN - 679563
2025:KER:64001
F.A.O.No.82 of 2025
-: 2 :-
2 SHAMEERA,
AGED 52 YEARS
W/O ABDUL KHADER, RESIDING AT KANNATH
HOUSE,VAILATHOORDESHAM, VAILATHOOR VILLAGE,
CHAVAKKAD TALUK, VAILATHOOR P.O., THRISSUR
DISTRICT., PIN - 679563
3 RAPHEL T JOSEPH,
AGED 75 YEARS
S/O GEORGE JOSEPH, RESIDING ATTHEKKEKKARA
HOUSE, KECHERIDESHAM, ERANALLOOR VILLAGE,
ERANALLOOR P.O., THALAPPALLAY TALUK, THRISSUR
DISTRICT., PIN - 680501
4 RENIL SHAJU,
AGED 50 YEARS
W/O SHAJU JOSEPH, PAVARATTY VILLAGE,
PAVARATTYP.O., CHAVAKKAD TALUK, THRISSUR
DISTRICT., PIN - 679563
BY ADVS.
SRI.P.T.SHEEJISH
SHRI.DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
SMT.CINDIA S.
SMT.POOJA CHANDRAN
SMT.GAYATHRI G.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
HEARING ON 22.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
F.A.O.No.82 of 2025
= = = = = = = = = = = = = = = = = =
Dated this the 22nd day of August, 2025
JUDGMENT
Sathish Ninan, J.
The claim petition filed under Order XXI Rule 58 of the
Code of Civil Procedure, was dismissed for non-prosecution.
The application seeking restoration of the same, was
dismissed by the execution court. The claim petitioner is in
appeal.
2. The claim petition was posted for enquiry on
18.06.2025. On the said date, since the claim petitioner did
not appear, the application was dismissed for default.
Restoration was sought on the ground that the applicant is
an aged lady and due to bad climatic conditions and physical
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ailments, she was unable to appear before the court. She
sought for restoration of the application. The application
was dismissed by the execution court.
3. We have heard the learned counsel on either side.
4. The proceeding arises in the execution of a decree
for money. The 1st defendant is the husband and the 2 nd
defendant is his wife. The suit is of the year 2015 and was
decreed ex parte on 05.01.2017. The decree holder filed
E.P.No.35 of 2020, seeking execution of the decree. In the
meanwhile, the husband(D1) and the wife(D2) filed separate
applications seeking to set aside the ex parte decree with a
huge delay of more than 2000 days. The applications were
dismissed by the trial court.
5. Challenging the same, they approached this Court
in F.A.O.No.110 of 2022 and F.A.O.No.17 of 2023. This Court
as per the judgment dated 27.06.2023 allowed the appeals and
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directed the trial court to pass fresh orders. The trial
court after considering the applications afresh, dismissed
the same. Challenging the orders, they approached this Court
in F.A.O.Nos.120 and 121 of 2023. As per judgment dated
30.10.2023, the appeals were dismissed. Thus, the ex parte
decree has become final.
6. In the course of execution, the husband had
approached this Court in O.P.(C) No.119 of 2024. The
original petition was disposed of on 17.10.2024 permitting
him to wipe off the decree debt in 12 equal monthly
installments. The direction was not complied with. The 2 nd
defendant-wife approached this Court in O.P.(C) No.2845 of
2024. The interim direction passed by this Court for payment
of Rs.5,00,000/- was not complied with. Accordingly, the
interim stay granted was vacated on 20.12.2024.
7. When the execution proceeded, the mother of the 1 st
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defendant filed a claim petition on 03.06.2025 as E.A.No.200
of 2025. In the claim petition, the contention was that the
document executed by her in the year 2010 in favour of her
son, the 1st defendant, was vitiated by undue influence. When
the application was posted for evidence, she did not turn
up. Though she claimed that she was suffering from ill-
health, no documents evidencing any illness preventing her
from appearing on the date of posting was not produced. The
other reason stated was, bad weather. No materials were
produced to show that, on that day, there was such a bad
climatic condition preventing her from appearing before the
court. It is submitted across the Bar that the claim
petitioner has also filed a suit as O.S.No.273 of 2025
against the 1st defendant for cancellation of the conveyance
made in favour of her son alleging undue influence. The
conveyance in favour of the claimant's son, the first
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defendant is sought to be challenged after 15 years when a
decree for money against the son is under execution.
8. From the proceedings as above, it is evident that
the proceedings smacks of malafides on the part of the claim
petitioner-appellant. Evidently, the attempt is to protract
the execution of the decree passed against her son as early
as in the year 2017.
9. We are in agreement with the execution court, in
having dismissed the application.
The appeal fails and is dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
