Kerala High Court
Trivandrum Latin Diocese vs Joseph D’Cruz on 24 February, 2025
OP(C) NO. 310 OF 2025
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2025:KER:16945
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
OP(C) NO. 310 OF 2025
AGAINST THE ORDER/JUDGMENT IN AS NO.180 OF 2010 OF
ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT,
THIRUVANANTHAPURAM ARISING OUT OF THE ORDER/JUDGMENT IN OS
NO.1032 OF 2003 OF III ADDITIONAL MUNSIFF COURT,
THIRUVANANTHAPURAM
PETITIONERS:
1 TRIVANDRUM LATIN DIOCESE
HAVING ITS PRINCIPAL OFFICE SITUATED AT BISHOPS
HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM, REPRESENTED
BY REV. BISHOP DR. SUSAI PAKKIAM, NOW REPRESENTED BY
REV. BISHOP THOMAS. J .NETTO, AGED 61 YEARS, S/O.
JESAYYAN NETTO, PIN - 695010
2 TRIVANDRUM CATHOLIC MINOR SEMINARY, KAZHAKOOTTAM
CATHOLIC MINOR SEMINARY, NEAR MARINA COLLEGE OF
ENGINEERING, KAZHAKOOTTAM, THIRUVANANTHAPURAM,
REPRESENTED BY ITS PRIEST-IN-CHARGE FR. ANDREWS
COSMOS, PIN - 695582
BY ADVS.
D.KISHORE
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENTS:
1 JOSEPH D'CRUZ
S/O. GRIGORY D'CRUZ, (DIED) ,NORTH HUMMOCK HOUSE,
MANICKAL VILLAGE, THIRUVANANTHAPURAM, WHO WAS
OP(C) NO. 310 OF 2025
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RESIDING AT TC 32/224, MADHAVAPURAM, TITANIUM P.O.,
THIRUVANANTHAPURAM, PIN - 695021
2 CICILY JOSEPH
BLESSING', PUTHENTHOPE P.O., KAZHAKOOTTAM,
THIRUVANANTHAPURAM, PIN - 695586
BY ADV KAVERY S THAMPI
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 310 OF 2025
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JUDGMENT
(Dated this the 24th day of February, 2025)
The limited relief sought for in this original petition is the
disposal of Exts. P7, P7(a) and P7(b) applications by the
Principal Sub Court, Thiruvananthapuram. Ext.P7 is an
application to set aside abatement, Ext.P7(a) is to condone the
delay and Ext. P7(b) is an impleading petition.
2. The case of the petitioners is that the petitioners
are the judgment debtors in E.P.No.116/2017 in O.S No.
1032/2003 on the file of III Additional Munsiffs Court,
Thiruvananthapuram. The 1st respondent was the decree
holder. The suit was filed for permanent prohibitory injunction
restraining defendants and their men from trespassing into the
plaint schedule property and from doing any act which will
affect the peaceful possession and enjoyment which is
detrimental to the interest of the plaintiff, recovery of
possession and for putting up of boundary. The suit was
decreed on 30.09.2009, against which the petitioner filed A.S
No. 180/2010.
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3. When the appeal was included in the special list for
hearing, the counsel for the 1 st respondent filed a memo
stating that the 1st respondent died on 15.05.2016. According
to the petitioner, there were no legal heirs and thus, the
appeal abated on 15.08.2016 and the same was dismissed as
abated as per the judgment dated 16.08.2016.
4. E.P. No. 52/2011 filed by the original decree holder
was also dismissed as the legal heir was not impleaded.
Subsequently, the present E.P. No. 116/2017 is filed by the 2 nd
respondent, claiming to be the wife of the original decree
holder. An objection was filed to the said application stating
that the decree is not executable. On 22.01.2025 the
petitioner filed I.A No. 69/2025 to set aside the abatement.
The Petitioner seeks a disposal of the applications. A report
was called for and a report was received wherein it is stated
that on receipt of the applications, notice was issued, and the
same is posted for the return of notice on 10.03.2025.
5. Adv. Sri. Kaveri. S. Thampi has appeared for the
2nd respondent. She submits that she will file an objection on
the posting date for the return of notice itself. She submits
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that till such time the execution proceedings shall not be
stayed as the intention of the petitioner is only to stall the
execution.
6. Having heard the learned counsel for the petitioner
as well as the respondents and taking note of the fact that
Ext.P7 series are pending before the Court and the respondent
has already received notice in the applications and assured that
she will file an objection on the very next posting itself, I deem
it appropriate to dispose of the original petition directing the
court below to take up Ext.P7 series and pass appropriate
orders after hearing both parties as well as the objection raised
by the petitioners on or before 30.03.2025, before the Principal
Subordinate Court, Thiruvananthapuram. Till such time, the
execution shall be deferred. The deference of execution is only
till the disposal of Ext.P7 series.
The Original Petition is disposed of as above.
Sd/-
BASANT BALAJI,
JUDGE
Saap
OP(C) NO. 310 OF 2025
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APPENDIX OF OP(C) 310/2025
PETITIONER EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 30.9.2009 IN
O.S. 1032/2003 ON THE FILE OF III-ADDITIONAL
MUNSIFFS COURT, THIRUVANANTHAPURAM
EXHIBIT P2 TRUE COPY OF THE MEMORANDUM OF APPEAL IS A.S.
180/2010 DATED 18.12.2010 ON THE FILE OF
DISTRICT COURT, THIRUVANTHAPURAM
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 16.8.2016 IN
A.S. 180/2010 ON THE FILE PRINCIPAL SUB COURT,
THIRUVANANTHAPURAM
EXHIBIT P4 TRUE COPY OF THE E.P. 116/2017 IN O.S.
1032/2003 DATED 23.3.2017 FILED BY THE 2ND
RESPONDENT
EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED 22.1.2019
FILED BY THE PETITIONERS TO EXHIBIT P4
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 17.12.2024 ISSUED
BY SRI. BABIN S XAVIER, ADVOCATE COMMISSIONER
TO THE 1ST PETITIONER
EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.
67/2025 IN A.S. 180/2010 DATED 22.1.2025
EXHIBIT P7(A) TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.
68/2025 IN A.S. 180/2010 DATED 22.1.2025
EXHIBIT P7(B) TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.
69/2025 IN A.S. 180/2010 DATED 22.1.2025
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 27.1.2021 IN E.A.
319/2018 IN E.P. 116/2017 IN O.S. 1032/2003 ON
THE FILE OF ADDITIONAL MUNSIFFS COURT-III,
THIRUVANANTHAPURAM
EXHIBIT P9 TRUE COPY OF THE LETTER DATED 29.1.2025 ISSUED
BY SRI. BABIN S XAVIER, ADVOCATE COMMISSIONER
TO THE 1ST PETITIONER
// True Copy // PA To Judge
