IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 12066 of 2009(O) ---------------------------------------- AGAINST THE ORDER IN EP.118/2008 IN OS.506/1995 of ADDL.MUNSIFF COURT, KOTTAYAM .................... PETITIONER(S): ----------------------- KUNJOONJAPPAN AGED 84 YEARS, S/O.KUTTAPPAI KUMARATHUSSERIL HOUSE, THEKKUMBHAGAM WARD VIII, KUMARAKAM VILLAGE, KOTTAYAM. BY ADVS.MR.G.HARIHARAN MR.PRAVEEN.H. RESPONDENT(S): ------------------------- JOSEPH ABRAHAM AGED 60 YEARS, S/O.ABRAHAM,KALAPPURAYILAYA PARAPPURATHU HOUSE, SOUTH CHENGALAM, CHENGALAM VILLAGE, KOTTAYAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.12066/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE EXECUTION PETITION FILED BY THE RESPONDENT AS EP. 118/08. P2:- COPY OF THE AFFIDAVIT DTD. 3.12.08 FILED BY THE RESPONDENT SEEKING ISSUANCE OF RULE 37 NOTICE AGAINST THE PETITIONER. P3:- COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN EP. 118/08. P4:- COPY OF THE PETITION FILED BY THE PETITIONER AS EA. 521/08 UNDER ORDER 18 RULE 17A OF THE CODE OF CIVIL PROCEDURE. P5:- COPY OF THE ORDER DTD. 18.12.08 IN EP. 118/08 IN OS. 506/95. P6:- COPY OF THE JUDGMENT DTD. 15.1.09 IN WPC. 1704/09. P7:- COPY OF THE EA. 150/09 FILED BY THE PETITIONER COMPLIANCE TO THE DIRECTIONS INEXT.P6. P8:- COPY OF THE ORDER DTD. 19.3.09 IN EA. 521/08 IN EP. 118/09 IN OS. 506/95. P9:- COPY OF THE ORDER DTD. 19.3.09 PASSED IN EP. 118/08. TRUE COPY P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.12066 OF 2009 -------------------------------- Dated this the 18th day of November 2009 ---------------------------------------------------------- JUDGMENT Petitioner is the judgment debtor in E.P No. 118 of 2008 in O.S No. 506 of 1995 on the file of Additional Munsiff Court, Kottayam. Decree executed has been passed in a suit for money, and the respondent, the decree holder. Negativing the plea of no means canvassed by the petitioner/ judgment debtor, the execution court ordered for issue of warrant against him. Before passing of the order issuing warrant, the enquiry on his plea of no means was posted for consideration. Judgment debtor was then absent and the execution court had passed an order declaring him exparte. That order was passed on 15/12/2008. On the same day the judgment debtor, according to his learned counsel, moved an application for setting aside the order declaring him exparte. Without considering or passing any order on that application, the execution court issued Ext.P5 order dated 18/12/2008 to issue warrant against him is the W.P.(C).No.12066 OF 2009 Page numbers case of the judgment debtor. Against Ext.P5 order, petitioner/judgment debtor preferred a writ petition as W.P(c) No. 1704 of 2009 before this court and that petition was disposed by Ext.P6 judgment directing the court below “to pass appropriate orders on Ext.P3 application filed for review of the order passed on 15/12/2008 setting the petitioner/judgment debtor exparte”. A further direction was also given that if at all any such petition had been already filed in the court below by the judgment debtor, the execution court shall pass appropriate orders thereof within two weeks from the date of production of a copy of the judgment. Pursuant to Ext.P6 judgment, petitioner/judgment debtor moved Ext.P7 application (E.A No.150 of 2009) praying for setting aside the order declaring him exparte on 15/12/2008 and permitting him to lead evidence on his plea of no means. The execution court dismissed the application previously moved by the petitioner (E.A No. 521 of 2008) by Ext.P8 order dated 19/03/09. Ext.P7 application was also dismissed by Ext.P9 order on even date. Propriety and correctness of Ext.P8 and Ext.P9 orders are challenged in W.P.(C).No.12066 OF 2009 Page numbers the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. Perusing Ext.P8 and Ext.P9 orders with reference to the submissions made by the learned counsel for the petitioner/judgment debtor and also other exhibits produced in the writ petition, I find the learned Munsiff has not taken note of the specific direction issued in Ext.P6 judgment. This court has directed the execution court to consider E.A No. 521 of 2008, the application moved by the petitioner/judgment debtor to set aside the order declaring the petitioner/judgment debtor exparte on 15/12/2008 and pass appropriate orders on that petition. In Ext.P8 order, it is seen, after going through Ext.P6 judgment the court has formed an opinion that the records of the case did not show that any review of the order passed on 15/12/2008 had been requested for. E.A No.521 of 2008 moved by the petitioner was itself an application for reviewing the order passed on 15/12/2008. So much so, the conclusion formed by the W.P.(C).No.12066 OF 2009 Page numbers learned Munsiff that the above petition has become infructuous for the reason that the records do not disclose of a petition for reviewing the order dated 15/12/2008 declaring the petitioner/judgment debtor exparte is patently erroneous and that being so, Ext.P8 order is liable to be set aside. In fact, Ext.P9 order passed on Ext.P7 application can be treated only as a subsequent application moved by the petitioner/judgment debtor to invite the attention of the court to the directions given in Ext.P6 judgment to provide him an opportunity to lead evidence in support of his plea of no means. Ext.P9 order also, in the circumstances, liable to be set aside. Ext.P8 and Ext.P9 orders are set aside. The court below is directed to consider Ext.P4 and Ext.P7 applications of the petitioner/judgment debtor and pass appropriate orders within three weeks from the date of receipt/production of a copy of this judgment. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// vdv P.A TO JUDGE