IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 4294 of 2009(J) ------------------------- AGAINST THE ORDER IN EA NO.192/2007 IN EP.526/2004 IN OS.1006/1998 of ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONER(S): --------------- SREE DHURGA BHAGAVATHIKKAVU TRUST, PATTANAKKAD, REPRESENTED BY ITS PRESIDENT, HARI, S/O. PALANISWAMY, AGED 34 YEARS, VELIKKAKATHU VEEDU, PATTANAKKAD VILLAGE, CHERTHALA TALUK, ALAPPUZHA. BY ADV. SRI.SHAJI THANKAPPAN RESPONDENT(S): --------------- GOPINATHAN, S/O. VASAVAN, AGED60 CHENNANATTU VEETTI,PATTANAKKAD VILLAGE, CHERTHALA TALUK, ALAPPUZHA DIST. ADV. SRI.J.OM PRAKASH FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 4294/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DECREE DATED 31.5.2003 IN OS NO.1006/1998 OF ADDITIONAL MUNSIFF COURT, CHERTHALA. EXT.P2: COPY OF I.A.NO.1768/2004 IN OS NO.1006/1998 OF ADDITIONAL MUNSIFF COURT, CHERTHALA. EXT.P3: COPY OF THE IMPLEADING PETITION IA NO.1769/2004 IN OS NO.1006/1998 OF ADDITIONAL MUNSIFF COURT, CHERTHALA. EXT.P4: COPY OF EP NO.526/2004 IN OS NO.1006/1998 OF ADDITIONAL MUNSIFF COURT, CHERTHALA. EXT.P5: COPY OF EA NO.31/2005 IN OS NO.1006/1998 OF ADDITIONAL MUNSIFF COURT, CHERTHALA. EXT.P6: COPY OF EA NO.192/2007 IN OS NO.1006/1998 OF ADDITIONAL MUNSIFF COURT, CHERTHALA. EXT.P7: COPY OF THE OBJECTION TO EXT.P6 FILED BY THE PLAINTIFF. EXT.P8: COPY OF THE ORDER IN EA NO.192/2007 IN EP NO.526/2004 IN OS NO.1006/1997 OF ADDITIONAL MUNSIFF COURT, CHERTHALA. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.4294 of 2009 --------------------------------------------- Dated this the 13th day of February, 2009 JUDGMENT The respondent and another filed O.S.No.1006/98 on the file of the court of the Munsiff of Cherthala for a declaration of title in respect of the plaint schedule property and for injunction. It was contended by the plaintiffs that the plaint schedule property belongs to the plaintiffs and other co-owners. The suit was filed against the defendants in a representative capacity under Order I Rule 8 of the Code of Civil Procedure. The counsel for the petitioner submits that the application for temporary injunction filed by the plaintiffs was dismissed by the trial court and that order was confirmed in appeal. However, the suit was decreed ex-parte on 31.5.2003. The petitioner is the present President of the first defendant Trust. 2. Ext.P2 application dated 30.6.2004 was filed to set aside the ex-parte decree. The application was filed by one Hari as the present President of the first defendant Trust. One Krishnan also joined in the application to set aside the ex-parte WPC No.4294/2009 2 decree. In the application to set aside the ex-parte decree, the petitioners therein contended that the suit was decreed ex-parte due to the collusion between the plaintiffs and the other office bearers of the first defendant Trust. Certain specific allegations are also made in the affidavit pointing out the nature of the collusion. It is stated that during the pendency of the application under Order IX Rule 13 of C.P.C., one of the respondents died and an application was filed to implead her legal representatives. Thereafter, one of the legal representatives sought to be impleaded also died and another application was filed to implead the legal representative of the deceased legal representative. It is admitted by both parties that the application under Order IX Rule 13 is pending disposal. 3. Meanwhile, the decree holder filed an execution petition to execute the decree and to enforce the terms of the decree. There is also a prayer to permit the decree holder to put up a compound wall on the boundaries of the property with police help. The Writ Petitioner filed E.A.No.192/07 in the Execution Petition to stay the proceedings pending disposal of the application for setting aside the ex-parte decree. The court below, by the order dated 19th January 2009, dismissed that WPC No.4294/2009 3 application which is under challenge in this Writ Petition. 4. It is not in dispute that the application under Order IX Rule 13 is pending. If the application is allowed, necessarily the decree will be set aside. The question is, in the facts and circumstances of the case, whether the execution proceedings should be kept in abeyance pending disposal of the application to set aside the ex-parte decree. 5. After having heard the learned counsel for the petitioner and the learned counsel for the respondent, and taking into account the facts and circumstances of the case, and also taking into account the fact that the suit was filed in a representative capacity, the defendants representing the members of the Trust and the beneficiaries of the Trust, I am of the view that the following directions are required to be made. In Ext.P8 order, the court below took the view that if the application to set aside the ex-parte decree is allowed, the petitioner could resort to the remedy under Section 144 of the Code of Civil Procedure. This is hardly a solace to the petitioner. Normally, when an application is filed under Order IX Rule 13, the decree would not be executed till the application is disposed of. The learned counsel for the respondent pointed out that the WPC No.4294/2009 4 petitioner has not taken necessary steps to make the application under Order IX Rule 13 ripe for hearing and therefore, he is not entitled to get any relief in the matter. 6. The Writ Petition is disposed of as follows: Ext.P8 order is set aside. The trial court shall dispose of the application filed by the petitioner under Order IX Rule 13, as expeditiously as possible, and at any rate before the closure of the courts for summer vacation. The petitioner shall make the application ripe for hearing before 15.3.2009 either by taking out notice urgently or by deleting the names of those persons who are not served, at the risk of the petitioner. Till the application under Order IX Rule 13 is disposed of, execution proceedings shall be kept in abeyance. It is made clear that keeping in abeyance of the execution proceedings shall under no circumstances go beyond 31.5.2009. The Writ Petition is disposed of accordingly. K.T.SANKARAN, JUDGE csl