IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 7488 of 2009(O) --------------------------------- AGAINST THE ORDER IN EA.139/2009,EP.439/2006 IN OS.73/2003 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- LILLY JOSEPH, W/O.JOSEPH DANIEL, GREEN LAND, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENT(S): --------------- GABRIEL BARNARD, S/O.GABRIEL, KADAYARA PUTHEN VEEDU, KUNNATHUKAL KARAKONAM P.O., NEYYATTINKARA. ADV. SRI.B.KRISHNA MANI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------- W.P.C.No.7488 of 2009 ---------------------------------- Dated this the 7th day of April, 2009 JUDGMENT The petitioner is the judgment debtor in O.S.No.73 of 2003, on the file of the court of the Subordinate Judge, Neyyattinkara. The suit was decreed ex-parte on 10.2.2006. The suit was for realisation of money. In February 2007, the petitioner filed Ext.P2 application to set aside the ex-parte decree. It is stated that there is delay of 342 days in filing the application. Ext.P3 application was submitted to condone the delay. Exts.P2 and P3 applications are pending. 2. The decree was transferred for execution to the Principal Sub Court, Thiruvananthapuram. The petitioner filed E.A.No.139 of 2009 before the transferee court to stay the execution proceedings pending disposal of the application for setting aside the ex-parte decree. The executing court dismissed that application by Ext.P6 order dated 5th February 2009. It was held by the executing court that no material was produced by the petitioner to show that she had filed an application to set aside the ex-parte decree. Another reason stated is that the attempt of the judgment debtor is to delay WPC No.7488/2009 2 the execution of the decree and that there is no provision for stopping the execution of the decree. 3. The finding of the court below that there is no provision for granting a stay is not correct. Rule 26 of Order 21 provides for stay by the transferee court in certain circumstances. Now, by the production of Exts.P2 and P3 before this Court, it is clear that an application for setting aside the ex-parte decree is pending before the trial court. That such an application pending is not disputed by the decree holder. Thus the reasons stated by the court below for dismissing the application are incorrect. 4. The order passed by the court below is therefore set aside. The court below shall consider the application afresh in accordance with law after affording an opportunity of being heard to both parties. I make it clear that I have not expressed any opinion on the merits of the application. The Writ Petition is allowed as above. K.T.SANKARAN, JUDGE csl