IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 WP(C).No.36767 of 2008 (B) ---------------------------------- AGAINST THE ORDER IN EP 15/08 IN OS.43/2006 of SUB COURT,KOCHI .................... PETITIONER: --------------- C.A. MATHEW, CHUDALAPARAMBIL HOUSE, BABAU'S NIVAS, PERUMPALLIKADU, KOTTAYAM. BY ADV. SRI.GIGIMON ISSAC RESPONDENT: --------------- K.C. MATHEW, PERUMALIL HOUSE, HOUSE NO. IX 1247, VELI, FORT KOCHI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C No.36767 of 2008 ------------------------------------------------ Dated this the 12th day of December, 2008 JUDGMENT Petitioner is the defendant in O.S.43/06 on the file of the Sub Court, Kochi. He was set ex parte in the suit on 26/09/07 and the suit was decreed on 28/09/07. He filed Ext.P3 application in the court below to set aside the ex parte decree on 05/04/08. It is submitted that just before filing of Ext.P3 application the petitioner got notice of execution and therefore, he filed Ext.P4 application before the execution court to stay execution proceedings till disposal of Ext.P3 application filed under Order IX Rule 13 C.P.C. The grievance of the petitioner is that the execution court has not passed any order on Ext.P4 application, but has allowed transfer of the decree to the Sub Court, Kottayam for execution. The prayers in this W. P. C No.36767 of 2008 -2- Writ Petition are:- (i) to stay execution proceedings in E.P.15/08 in O.S.43/06 on the file of the Sub Court, Kochi. (ii) for a direction being given to the Sub Judge, Kochi to pass orders on Exts.P3 and P4 petitions pending respectively on the trial side and the execution side. 2. Prayer No.1 cannot be allowed as it is submitted that the execution petition is disposed of ordering transfer of the decree to the Sub Court, Kottayam. In relation to the second prayer, no direction need be given to dispose of Ext.P4 petition as that is filed on the execution side for stay of execution, but the E.P. itself is disposed of ordering transfer of the decree to Sub Court, Kottayam for execution. So what remains is only Ext.P3. The petitioner wants a direction being issued to the Sub Court, Kochi to dispose of Ext.P3 W. P. C No.36767 of 2008 -3- petition filed by him under Order IX Rule 13 of the C.P.C as I.A.688/06 in O.S.43/06. It is submitted that the respondent has already entered appearance in Ext.P3 application though he has not filed any objection till date. In the circumstances, I direct the Sub Judge, Kochi to dispose of Ext.P3 application (I.A.688/08 in O.S.43/06) on the file of his court as expeditiously as possible and in any event before 31/01/09. 3. This Writ Petition is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/-