IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 Ex.FA.No. 29 of 2009() ---------------------- EA 582/06 IN EP 257/04 IN OS.301/1998 of PRL.SUB COURT,KOTTAYAM .................... APELLANTS/CLAIM PETITIONERS 1 & 2: -------------------------------------------------------- 1. RAJAMMA MARTIN @ ACHAMMA, D/O.M.J.CHACKO MATHICHIPARAMBIL, NEAR VANDIPETTA VAZHAPPILLY KIZHAKKU VILLAGE, CHANGANASSERY. 2. THRESIAMMA @ PUZHAPAMMA, D/O.M.J,.CHACKO MATHICHIPARAMBIL, NEAR VANDIPETTA, VAZHAPPILLY KIZHAKKU VILLAGE, CHANGANACHERRY. BY ADV. SRI.SABU GEORGE RESPONDENT(S): --------------- 1. TOM JOSEPH, S/O.JOSEPH, KALARIPPARAMBIL HOUSE, THRIKKODITHANAM, CHANGANASSERY. 2. KURIAN JACOB, S/O.M.J. CHACKO, MATHICHIPARAMBIL, NEAR VANDIPETTA, VAZHAPPILLY KIZHAKKU VILLAGE, CHANGANASSERY. 3. JAMES JACOB, S/O.M.J.CHACKO, MATHICHIPARAMBIL, NEAR VANDIPETTA, VAZHAPPILLY KIZHAKKU VILLAGE, CHANGANACHERRY 4. BENNY JACOB, S/O.M.J.CHACKO, MATHICHIPARAMBIL, NEAR VANDIPETTA, VAZHAPPILLY KIZHAKKU VILLAGE CHANGANASSERY. 5. ROSAMMA @ AGNESS, D/O.M.J.CHACKO, MATHICHIPARAMBIL, NEAR VANDIPETTA, VAZHAPPILLY KIZHAKKU VILLAGE, CHANGANASSERY. THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. ---------------------------------------------- Ex.F.A. No.29 of 2009 ---------------------------------------------- Dated 17th February, 2009. J U D G M E N T Kurian Joseph, J. This is an appeal against the order dated 15.1.2009 in EA 582/06 in EP 257/04 in O.S.301/98 on the file of the Principal Sub Court, Kottayam. As per the said order, the application filed by the petitioners under Order 38 Rule 5 read with Order 21 Rule 58 of the Code of Civil Procedure has been dismissed. A perusal of the order would show that the claim petition was dismissed for the reason that the claim petitioners are absent. True, the execution court has also referred to the merits of the case to the effect that no materials have been produced and that it was dismissed once, and still further that there is no bonafides in the petition. We are afraid, those observations were unnecessary since they are made in the absence of the party. Therefore, essentially this is an order passed under Rule 105(2) of Order 21 of the Code of Civil Procedure since the claim petitioners are absent. Hence, any observations made in the order do not have any bearing while considering an application under Rule 106 for restoration. That petition will have to be independently Ex.F.A. NO.29/09 2 considered. Learned counsel for the appellants invites reference to Annexure A Medical Certificate. That is a matter to be considered by the court while passing orders on the application for restoration under Rule 106. Therefore, we dismiss the appeal; making it clear that in the event of the appellants pursuing the remedy under Rule 106 Order 21, the same shall be independently considered, untrammelled by any of the observations in the order under appeal. I.A.No.518/09 : Dismissed. KURIAN JOSEPH, JUDGE. S.S.SATHEESACHANDRAN, JUDGE. tgs KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ ---------------------------------------------- Ex.F.A. No.29 of 2009 ---------------------------------------------- J U D G M E N T Dated 17th February, 2009.