IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 WP(C).No. 2457 of 2010(O) ------------------------- AGAINST THE ORDER IN EP 23/2009 IN OS.345/2004 of MUNSIFF COURT, PUNALUR .................... PETITIONER(S): --------------- BEENA, AGED 42, W/O.MADHAVAN M.B.M.HOUSE, AGASTHYACODE, ANCHAL, FROM KARIMALSSERIL VEEDU, ANCHAL, YEROOR, PATHANAPURAM. BY ADV. SRI.PRAVEEN K. JOY SRI.ADEEP ANWAR RESPONDENT(S): --------------- 1. VARIJAKSHAN, AGED 52, S/O.DIVAKARAN SAKTHI BHAVAN VEEDU,AGASTHYACODE,ANCHAL VILLAGE PATHANAPURAM. 2. SUJA, W/O.VARIJAKSHAN SAKTHI BHAVAN VEEDU,AGASTHYACODE,ANCHAL VILLAGE PATHANAPURAM. ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL FOR R1 & 2 SRI.S.VISHNU FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.2457/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF IA NO.557/2009 IN OS 345/2004 OF MUNSIFF COURT, PUNALUR EXT.P2 TRUE PHOTOCOPY OF THE ORDER DATED 7.1.2010 IN EP NO.23/2009 IN OS 345/2004 OF MUNSIFF COURT, PUNALUR EXT.P3 TRUE PHOTOCOPY OF EA NO.13/2010 IN EP 23/2009 IN OS 345/2004 OF MUNSIFF COURT, PUNALUR EXT.P4 TRUE PHOTOCOPY OF EA NO.14/2010 IN EP 23/2009 IN OS 345/21004 OF MUNSIFF COURT, PUNALUR RESPONDENTS' EXHIBITS: EXT.R1 TRUE COPY OF THE JUDGMENT DATED 22.2.2005 IN WP(C) NO.2474/2005 OF THIS COURT. EXT.R2 TRUE COPY OF THE SKETCH PLAN SUBMITTED BEFORE THE TRIAL COURT BY THE ADVOCATE COMMISSIONER. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.2457 of 2010 -------------------------------------- Dated this the 10th day of June, 2010. JUDGMENT This Writ Petition is filed by judgment debtor No.1 in E.P.No.23 of 2009 in O.S.No.345 of 2004 of the court of learned Munsiff, Punalur. Grievance of petitioner is that at a time when she was not in station, notice of execution petition was allegedly served by affixture regarding which respondents/decree holders filed a memo in the executing court but notwithstanding that counsel for petitioner was present and a request was made to grant some time to file objection to the execution petition time was not granted and prayer No.2 in the execution petition for removal of the disputed gate has been allowed by the executing court. According to the learned counsel petitioner be given some time to file her objection. Learned counsel for respondents contend that an exparte decree was passed in favour of respondents and though an application to set aside that exparte decree was preferred by the petitioner that has been dismissed and hence there is no impediment in executing the decree. According to the learned counsel this Court while disposing of W.P.(C) No.2474 of 2005 had directed by judgment dated 22.02.2005 to dispose of the suit at the earliest. 2. The suit has already been disposed of though by an exparte decree and no objection regarding executablity has been raised by petitioner. It is seen from Ext.P2 that though counsel for petitioner was present in the executing WP(C) No.2457/2010 2 court respondents/decree holders filed a memo (according to the learned counsel, that there was service on petitioner by affixture at her residence at Anchal). But petitioner was at Delhi during the relevant time in connection with the employment of her husband. That ofcourse is disputed by counsel for respondents. But it is seen that counsel for petitioner was present in the executing court. In the circumstances I am inclined to give petitioner an opportunity to prefer her objection to the execution petition. Resultantly this Writ Petition is disposed of in the following lines: i. Ext.P2, order dated 07.01.2010 in E.P.No.23 of 2009 in O.S. No.345 of 2004 of the court of learned Munsiff, Punalur is set aside. ii. Petitioner is permitted to prefer her objection if any to the execution petition within three weeks from this day. iii. Executing court after consideration of the objection if any preferred by petitioner shall pass appropriate orders on the execution petition. I.A.No.3346 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks