Murali Menon vs Jacob Chacko

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Kerala High Court

Murali Menon vs Jacob Chacko

Bench: K.Abraham Mathew

        

 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT:

            THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

       WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937

                             OP(C).No. 609 of 2016 (O)
      (Against the order dated 9.2.2016 in E.A.No.888/2015 in E.P.No.30/2013 in
           o.s.No.248/2012 Honourable Principle Sub Court, Ernakulam)

PETITIONER/JUDGMENT DEBTOR/DEFENDANT:


      MURALI MENON,
      S/O. LATE PADMANABHA MENON, FLAT NO.B 15, ROYAL PARK,
      THAMMANAM. P.O, PONNURUNNI, POONITHURA VILLAGE,
      ERNAKULAM DISTRICT-682 019.

       BY ADV. SRI.N.K.MOHANLAL

RESPONDENT/DECREE HOLDER/PLAINTIFF:

      JACOB CHACKO, S/O. LATE V.C.CHACKO, SUNIL NIVAS,
      CHILAVANNOOR ROAD, KADAVANTHRA P.O., COCHIN-20.

       R1 BY ADVS. SRI.S.VIDYASAGAR
                     SRI.B.V.JOY SANKER
                     SRI.S.RENJITH
                     SRI.C.A.JOJO
                     SRI.MATHEWS JOSEPH


       THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02-03-2016, THE

       COURT ON THE SAME DAY DELIVERED THE FOLLOWING:




bala.1

OP(C).No. 609 of 2016 (O)



                                         APPENDIX

PETITIONER(S)' EXHIBITS
-------------------------------------

EXHIBTI P1- TRUE COPY OF THE AGREEMENT DATED 30-09-2015.

EXHIBIT P2- TRUE COPY OF SECTION 47 PETITION EA 888/2015 OF SUB COURT,
                  ERNAKULAM.

EXHIBIT P3- TRUE COPY OF OBJECTION NO. EA 888/2015.

EXHIBIT P4- TRUE COPY OF THE ORDER NO. EA 888/2015.

EXHIBIT P5- TRUE COPY OF PETITION SUBMITTED BEFORE DIG OF POLICE.

RESPONDENT(S)' EXHIBITS

                     NIL




                                                            /TRUE COPY/-


bala                                                      P.S. TO JUDGE



                       K.ABRAHAM MATHEW, J.
                      ---------------------------------------
                         O.P.(C). No.609 of 2016
                   ----------------------------------------------
                 Dated this the 2nd day of March, 2016

                                 JUDGMENT

Petitioner is the judgment debtor in O.S.No.248 of 2012 of Principal Sub court, Ernakulam. The decree is for realisation of money. In E.P.No.30 of 2013 the petitioner alleged that there was a compromise between the parties after the passing of the decree and in view of the compromise the decree has become unexecutable. The contention of the respondent/decree holder was that the agreement relied on by the petitioner was executed under vitiating circumstances. The learned Sub Judge rejected the petitioner's case and dismissed the application filed by him. This is challenged.

2. Heard.

3. Both parties did not adduce oral evidence in the executing court. Some documents were marked on either side subject to proof. It was improper for the court below to mark the documents subject to proof. A document can be marked subject to proof only in certain circumstances in the course of oral evidence. There is no question of marking a document subject to proof on consent. In the nature of the O.P.(C). No.609 of 2016 2 case oral evidence was required. To avoid miscarriage of justice I am inclined to allow both parties to adduce fresh evidence.

In the result, this O.P is allowed. The impugned order is set aside. Both parties are allowed to adduce oral and documentary evidence.

K.ABRAHAM MATHEW JUDGE pm

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