Kerala High Court
Sebastian @ Xavier vs Vavachan @ Augustine
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
FRIDAY, THE 10TH DAY OF FEBRUARY 2012/21ST MAGHA 1933
OPC.No. 456 of 2012 (O)
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EP.NO.115/2011 IN OS.19/2009 of PRL.M.C., KOCHI
PETITIONERS : -
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1. SEBASTIAN @ XAVIER,
AGED 36 YEARS, FISHERMAN, S/O.VINCENT,
RESIDING AT PALLIPPARAMBIL HOUSE, MOOLAMKUZHI MURI,
RAMESWARAM VILLAGE, KOCHI TALUK.
2. AMMINI, AGED ABOUT 33 YEARS, W/O.SEBASTIAN @ XAVIER,
RESIDING AT PALLIPPARAMBIL HOUSE, MOOLAMKUZHI MURI
RAMESWARAM VILLAGE, KOCHI TALUK.
BY ADVS.SRI.G. KRISHNAKUMAR
SRI.B.S. SURAJ KRISHNA
SRI. TITTO THOMAS
SRI.K.A. ANI JOSEPH
RESPONDENTS : -
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1. VAVACHAN @ AUGUSTINE,
AGED 54 YEARS, S/O.VINCENT, FISHERMAN,
RESIDING AT PALLIPPARAMBIL HOUSE, MOOLAMKUZHI MURI
RAMESWARAM VILLAGE, KOCHI TALUK-682002.
2. VARGHESE,
ABOUT 41 YEARS, S/O.VINCENT,
RESIDING AT PALLIPPARAMBIL HOUSE,
MOOLAMKUZHI MURI, RAMESWARAM VILLAGE,
KOCHI TALUK-682002.
3. ELSY
ABOUT 39 YEARS, W/O.VARGHESE
RESIDING AT PALLIPPARAMBIL HOUSE
MOOLAMKUZHI MURI, RAMESWARAM VILLAGE
KOCHI TALUK-682002.
R1 BY SRI.C.A.CHACKO
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-02-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OPC.No. 456 of 2012 (O)
APPENDIX
PETITIONERS' EXHIBITS:
EXT P1 : COPY OF THE E.A. 23/2012 IN E.P. 115/2011 IN O.S. 19/2009 FILED BEFORE
THE PRINCIPAL MUNSIFF COURT, KOCHI.
EXT P2 : COPY OF THE COUNTER AFFIDAVIT OF THE 1st RESPONDENT IN E.A.
23/012 IN E.P. 115/2011 IN O.S. 19/2009 ON THE FILE OF PRINCIPAL
MUNSIFF COURT.
EXT P3 : COPY OF THE ORDER DATED 31.1.2012 IN EP 115/2011 IN O.S. 19/2009 OF
THE PRINCIPAL MUNSIFF COURT.
RESPONDENTS' EXHIBITS: NIL.
TRUE COPY
P.A. TO JUDGE
DMR-
S.S.SATHEESACHANDRAN,J.
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O.P. (c) NO. 456 of 2012
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Dated this the 10th day of February, 2012
JUDGMENT
Petitioners are defendants 1 and 2 in O.S. No. 19/09 on the file of the Munsiff Court, Kochi. That suit was one for putting a boundary which had been decreed ex-parte in favour of the first respondent/plaintiff. Previously the first respondent had moved another suit as O.S. No :78/07 for a decree of perpectual prohibitory injunction against the petitioners and also respondents 2 and 3. An ex-parte decree was passed in that suit and when that decree was put in execution alleging violation of injunction, these petitioners had moved an application for setting aside the ex-parte decree after condoning the delay of more than one year, and, thereupon, the decree was set aside and the suit restored for trial afresh. By that time the subsequent suit filed by the first respondent/plaintiff as O.S. No : 19/09 seeking the relief of putting up boundary also became ripe for trial. Both the O.P. (c) NO. 456 of 2012 2 cases were posted for trial and at that stage also the petitioners/defendants 1 and 2 remained absent and consequently decrees ex-parte against them were passed in the two suits. When the first respondent filed an execution petition EP. No : 115/11 for executing the decree passed in O.S. No. : 19/09, the petitioners moved an application as E.A. No : 23/12 under Rule 26 and 29 of Order 21 of the Code of Civil Procedure for stay of execution of the decree canvassing that they had moved applications for setting aside the ex-parte decrees passed in the two suits, O.S. No : 78/07 and O.S. No : 19/09. The learned Munsiff not being satisfied with the cause shown for staying the operation of the decree put in execution dismissed that application by P3 order. Challenge in the original petition is against P3 order.
2. Notice given the first respondent has entered appearance. I heard the counsel on both sides. Notice dispensed with to respondents 2 and 3/defendants 3 and 4 in the suit, who have not impeached the ex-parte decrees passed against them till date. Applications moved by the petitioners to set aside the O.P. (c) NO. 456 of 2012 3 ex-parte decree passed against them in the two suits are pending consideration before the same court is the submission of the learned counsel for keeping in abeyance the execution of the decree passed ex-parte in O.S. No. 19/09 till disposal of such petitions. The learned counsel for the first respondent pointing out that previously the decree passed in O.S No. 78/07 had been allowed after condoning inordinate delay, submitted that the petition for stay has been filed only to prolong the execution of the decree. From the facts and circumstances presented and also submissions made, the objections raised by the learned counsel for the respondent impeaching the merit of the application for stay of execution cannot be brushed aside as meritless. However, it is seen that without examining the merit of the applications moved for setting aside the ex-parte decrees, the learned Munsiff has expressed some views on such petitions while passing P3 order for stay of execution. Observations made thereunder may sometimes prejudice the petitioners in prosecuting their petitions for setting aside the ex-parte decrees. That also being taken note of, I find, the ends of justice would be better served by directing O.P. (c) NO. 456 of 2012 4 the learned Munsiff to consider and dispose of the applications moved by the petitioners for setting aside the ex-parte decrees within a time frame. The execution of the decree applied for by the first respondent decree holder in O.S. No : 19/09 can wait for a short period till disposal of the petitions moved by the petitioners for setting aside the ex-parte decree. But such indulgence can be extended to the petitioners only on terms. Petitioners shall pay a cost of Rs. 2000/- (Rupees Two Thousand Only), to the first respondent within a period of one week from today. Cost ordered shall be paid to the counsel appearing for the first respondent before this court within a week and a memo evidencing such payment tobe produced before the court below within a period of two weeks. If any such memo is produced evidencing payment of cost as ordered to the counsel for the first respondent then the learned Munsiff shall take up the petitions moved by the petitioners for setting aside the ex-parte decrees passed in O.S. No : 78/07 and O.S. No : 19/09 giving them top priority, and dispose such petitions on merits after hearing both sides as expeditiously possible, at any rate within a period of 8 O.P. (c) NO. 456 of 2012 5 weeks after receipt/production of a copy of this judgment. I make it clear that in the enquiry on such petitions if service has not been completed against the defendants 3 and 4, if at all they have been made parties, it can be dispensed with as they have not opposed the ex-parte decrees passed against them. If cost is paid as directed, and memo filed before the court below, then, the learned Munsiff shall keep in abeyance execution of the decrees sought for in EP 115/11 in O.S. 19/09 till disposal of the applications moved by the petitioners for setting aside the ex- parte decrees in the two suits.
Petitions is disposed of as indicated above.
S.S.SATHEESACHANDRAN JUDGE.
DMR/-