Kerala High Court
Balgopal Naik vs Anandhan on 17 October, 2025
O.P.(C) No. 531 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K. NATARAJAN
FRIDAY, THE 17TH DAY OF OCTOBER 2025 / 25TH ASWINA, 1947
OP(C) NO. 531 OF 2023
AGAINST THE OS NO.72 OF 2015 OF ASSISTANT SESSIONS
COURT/ADDITIONAL SUB COURT, IRINJALAKUDA AND OS NO.133 OF
2015 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT /
COMMERCIAL COURT,IRINJALAKUDA
PETITIONER/ADDITIONAL DEFENDANT:
BALGOPAL NAIK
AGED 55 YEARS, SON OF P.G. SASIDHARA NAIK,
POZHANKAVIL, THEKKEMADATHIL HOUSE, PANANGAD P.O.,
S.N.PURAM, KODUNGALLUR, THRISSUR DISTRICT,
PIN - 680 665.
BY ADVS.
SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
SMT.GREESHMA CHANDRIKA.R
RESPONDENTS/PLAINTIFFS AND DEFENDANTS:
1 ANANDHAN
AGED 64 YEARS, SON OF THOTTARATH NARAYANAN,
PANAGAD DESOM, SREENARAYANAPURAM VILLAGE,
KODUNGALLUR TALUK, PANANGAD P.O.
THRISSUR DISTRICT, PIN - 680 665. (DIED)
2 VIMALA
AGED 79 YEARS
W/O POZHANKAVIL THEKKEMADATHIL SASIDHARANAIKAN,
PANANGAD DESOM, SREENARAYANAPURAM VILLAGE,
KODUNGALLUR TALUK, PANANGAD P.O.
THRISSUR DISTRICT, PIN - 680 665.
3 DEEPA S. NAIK
O.P.(C) No. 531 of 2023
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AGED 49 YEARS
D/O POZHANKAVIL THEKKEMADATHIL SASIDHARANAIKAN,
PANAGAD DESOM, SREENARAYANAPURAM VILLAGE,
KODUNGALLUR TALUK, PANANGAD P.O.
THRISSUR DISTRICT, PIN - 680 665.
4 ROOPA S. NAIK
AGED 40 YEARS
D/O POZHANKAVIL THEKKEMADATHIL SASIDHARANAIKAN,
PANANGAD DESOM, SREENARAYANAPURAM VILLAGE,
KODUNGALLUR TALUK, PANANGAD P.O.,
THRISSUR DISTRICT, PIN - 680 665.
5 K.P. SOMASUNDARAN NAIR
AGED 72 YEARS, S/O PADMANABHAN NAIR,
CHERAYI MURIYIL MURALI NIVASIL,
PALLYPPURAM VILLAGE, KOCHI TALUK,
PALLYPPURAM P.O., PIN - 683 514.
6* USHA ANANDHAN
AGED ABOUT 58 YEARS, W/O LATE ANANDHAN,
PANAGAD DESOM, SREENARAYANAPURAM VILLAGE,
KODUNGALLUR TALUK, PANANGAD P.O.,
THRISSUR DISTRICT -680 665.
7 ARYA G.G.
AGED ABOUT 31 YEARS, D/O LATE ANANDHAN,
PANAGAD DESOM, SREENARAYANAPURAM VILLAGE,
KODUNGALLUR TALUK, PANANGAD P.O.
THRISSUR DISTRICT - 680 665.
8 AASHRIT ANANDHAN
AGED ABOUT 28 YEARS, S/O LATE ANANDHAN,
PANAGAD DESOM, SREENARAYANAPURAM VILLAGE,
KODUNGALLUR TALUK, PANANGAD P.O. THRISSUR
DISTRICT- 680 665
(*ADDITIONAL RESPONDENTS 6 TO 8 ARE IMPLEADED AS
THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST
RESPONDENT VIDE ORDER DATED 15.11.2023 IN
I.A. 1/2023)
O.P.(C) No. 531 of 2023
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BY ADVS.
SRI.MOHAMMED SADIQUE.T.A
SHRI.K.M.MOHAMMED YUSUFF (M-1323)
SRI.K.P.MAJEED
SRI.M.M.MUHAMMAD ASHARAF
SHRI.SHANKAR V.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
17.10.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C) No. 531 of 2023
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JUDGMENT
(Dated this the 17th day of October, 2025)
This petition is filed by the petitioner for a
direction to the Sub Court, Irinjalakuda to defer all the
proceedings pursuant to the decree obtained by the
1st respondent herein in O.S.No.72/2015 and OS
No.133/2015, and for a further direction to the said Court to
hear and dispose the IA Nos.5/2020 and 6/2020 in
O.S.No.133/2015 in a time bound manner.
2. Heard the arguments of the learned counsel for the
petitioner and the learned counsel for the respondents.
3. The case of the petitioner is that the petitioner filed
a suit in OS No.650/11 for partition and separate possession
against 2nd respondent herein and others and obtained the
decree before the Civil Court. Subsequently, one of the
defendants filed appeal before the District Court wherein the
District Court allowed the appeal and reversed the judgment
decree passed by the trial court in O.S.No.650/11. Against
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the reversal of the decree the petitioner already filed a second
appeal before this Court (High Court) in RSA No.731/15.
4. The further case of the petitioner is that when the
petitioner filed an application before the High Court where the
respondent in the 2nd appeal (1st respondent herein is not a
party) where the respondents were undertaken that not to
alienate the said property. That undertaking is still pending
before this Court. Meanwhile, the respondents 1 & 5 herein
said to have filed two suits against respondents 2 to 4 herein
in O.S.No.72/15 and 133/15 for specific performance of
contract based upon the agreement of sale said to be
executed by the 2nd respondent herein in favour of the
respondents 1 & 4. The said Suits have been decreed by the
Sub Court, Irinjalakuda. Thereafter, the OS No.133/15 has
been decreed on 30.01.2016 and OS No.72/15 has been
decreed on 16.10.2019. Wherein, both the suits the petitioner
was not made as a party but the respondent No.2 placed ex-
parte and the respondent No.1 & 5 obtained the decree as
against the schedule property in the 2nd appeal, RSA
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No.731/2015 wherein undertaking also apprehending against
the respondent No.2. Therefore, the petitioner approached
the Sub Court, Irinjalakuda to defer the execution
proceedings i.e., Exts.P4 & P5 by filing the IAs 5/2020 &
6/2020 and the petitioner also filed another IA for setting
aside the ex-parte decree before the said Court. But the said
IA is still pending not passed any order. Therefore, the
petitioner approached this Court for issuing direction to the
Sub Court, Irinjalakuda to keep in abeyance the decree
passed in both the suits till disposal of the 2 nd appeal by the
High Court and stay the execution proceedings in the decree
passed by the said Court.
5. The respondents counsel objected the petition
holding that the petitioner was not a party in both the suits
and he has no authority to raise the application for setting
aside the ex-parte decree by filing application under Order IX
Rule 13 of the CPC and when appeal is pending before the
High Court, the grievance of the petitioner is before the High
Court, issecond appeal and there is no injunction granted
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against this 1st respondent. Hence prayed for dismissal of this
petition.
6. Having heard the arguments and perused the
records. On perusal of the same, which reveals that though
the petitioner was not a party to both the suits in
O.S.No.133/15 and 72/15 where the respondent No.2 was the
defendant and the suit was decreed exparte. Therefore, the
person who is not a party to the suit or not a defendant who
is the petitioner filed an application for setting aside the ex-
parte decree by filing IA Nos.5/2020 & 6/2020 before the Sub
Court, Irinjalakuda but the said applications are not yet
disposed of by the court.
7. Therefore, I am of the view that it is necessary to
issue direction to the Sub Court, Irinjalakuda for setting
aside the ex-parte by taking into consideration whether he is
entitled to raise or right to file application for setting aside the
ex-parte decree who is not a party to the suit as per the
provision Order IX Rule 13 of the Code of Civil Procedure
Code, 1908. That apart when a second appeal is filed by the
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petitioner before this Court, if any undertaking given by him
by the 2nd respondent before this Court, his grievance is
before the 2nd appeal and the trial court until passing any
orders on IA Nos.5/2020 & 6/2020, the court cannot pass any
order against the execution of the decrees until it is stayed by
the appellate court. Therefore, the 1 st prayer sought by the
petitioner cannot be granted by this Court for directing the
Sub Court for deferring or keep in abeyance of the
proceedings in respect of the decree obtained by the
respondent No.1 herein. Therefore, the first prayer will have
to be rejected.
However, this Court can issue direction to the Sub Court,
Irinjalakuda to dispose of the IA Nos.5/2020 & 6/2020 with
time bound manner.
8. Therefore, the Original Petition is allowed in part.
i. The first prayer for directing the trial
court to keep in abeyance all the
proceedings in Exts.P6 & P8 judgments is
hereby rejected.
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ii. In respect of second prayer, this Court
directs the Sub Court, Irinjalakuda to
dispose of the IA Nos.5/2020 & 6/2020
filed under Order IX Rule 13 of the CPC
within two months from the date of
receipt of copy of this judgment.
iii. By keeping it in mind that whether the
petitioner is having any right to file such
application for setting aside ex-parte
decree under Order IX Rule 13 of the
CPC who was not a defendants in the
suit.
iv. All other contentions are kept open.
Sd/-
K. NATARAJAN
JUDGE
S.M.K.
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APPENDIX OF OP(C) 531/2023
PETITIONER EXHIBITS
Exhibit P1 COPY OF THE DECREE DATED 05-03-2014 IN
O.S.650/2011 OF SUB COURT, IRINJALAKUDA
Exhibit P2 COPY OF PETITION I.A.1637/2015 IN
R.S.A. 731/2015 OF HIGH COURT OF KERALA
Exhibit P3 COPY OF THE ORDER DATED 20-08-2015 IN
R.S.A.731/2015 OF HIGH COURT OF KERALA
Exhibit P4 COPY OF PETITION I.A.5/2020 IN
O.S.133/2015 OF PRINCIPAL SUB COURT,
IRINJALAKUDA
Exhibit P5 COPY OF PETITION I.A.6/2020 IN
O.S.133/2015 OF PRINCIPAL SUB COURT,
IRINJALAKUDA
Exhibit P6 COPY OF JUDGMENT DATED 30-01-2016 IN
O.S.133/2015 OF PRINCIPAL SUB COURT,
IRINJALAKUDA
Exhibit P7 COPY OF THE PLAINT - O.S.72/2015 OF
ADDITIONAL SUB COURT, IRINJALAKUDA
Exhibit P8 COPY OF DECREE DATED 16-10-2019 IN
O.S.72/2015 OF ADDITIONAL SUB COURT,
IRINJALAKUDA
