IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 WP(C).NO. 16634 OF 2010(O) ------------------------------------------ AGAINST THE ORDER DATED 27/02/2010 IN EA 430/2009 IN EA.397/2009 OF SUB COURT, OTTAPPALAM .................... PETITIONER(S): ---------------------- VIJAYAKUMAR, S/O.SAROJINI AMMA, ANTHOORUTHODI HOUSE, VELLINEZHI AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): ------------------------ NARAYANAN, S/O.PANGAN, USHALAYAM, VELLINEZHI VILLAGE, OTTAPALAM TALUK. ADV. SRI.K.K.RAJEEV FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF E.P. NO.63 OF 2007 IN O.S. NO.270 OF 1996 OF SUB COURT, OTTAPALAM. EXHIBT P2 TRUE COPY OF COMMON ORDER IN E.A. NOS.397 AND 430 OF 2009 IN E.P. NO.63 OF 2007 IN O.S. NO.270 OF 1996 OF SUB COURT, OTTAPALAM DATED 27.2.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.16634 of 2010 ==================================== Dated this the 27th day of July, 2010 J U D G M E N T This Writ Petition is in challenge of Ext.P2, order dismissing E.A. Nos.397 and 430 of 2009 in E.P. No.63 of 2007 in O.S. No.270 of 1996. Respondent obtained an ex parte decree against petitioner for recovery of money on 30.11.1996. That was put to execution on 01.06.2007 by filing E.P. No.63 of 2007. Notice was ordered on that petition but it would appear that order of court below was on an incorrect address and hence petitioner was not served on that execution petition. Executing directed respondent- decree holder to take steps. On 20.11.2008, for the reason that steps were not taken E.P. No.63 of 2007 was dismissed for default. On 2.12.2008 respondent filed I.A.No.3718 of 2008 for restoration of E.P.No.63 of 2009 dismissed for default. According to the petitioner he was not given notice on that application and without such notice the application was allowed and E.P.No.63 of 2008 was restored to file. Petitioner filed E.A. Nos.397 and 430 of 2009 to review the order on I.A. No.3718 of 2008 and to condone the delay in filing that application. Those applications were dismissed W.P(C) No.16634 of 2010 -: 2 :- by the executing court vide Ext.P2, order. It is stated that though notice under Order XXI Rule 22 of o the Code of Civil Procedure (for short, “the Code”) was served on petitioner he did not appear and has not given sufficient reason to condone delay of ten months in filing the application for review. Holding so, applications were dismissed. It is contended by learned counsel that even if it is assumed that notice under Order XXI Rule 22 of the Code was served petitioner was entitled to get notice under Order XXI Rule 66 of the Code which was not served on him but the execution petition itself was dismissed. According to the learned counsel I.A.No.3718 2008 was filed on 2.12.2008 at a time when a fresh execution petition was barred by limitation and hence application for restoration ought not have been allowed. Learned counsel for respondent contended that under Rule 106 of Order XXI of the Code application has to be filed within 30 days from the date of dismissal for default. That having been done contention that I.A.No.3718 of 2008 could not have been allowed cannot be sustained. It is also contended that petitioner who remained absent on receiving notice under Order XXI Rule 22 of the Code is not entitled to any notice in the subsequent proceeding. 2. No doubt if a party remained absent he cannot insist W.P(C) No.16634 of 2010 -: 3 :- for notice in the subsequent proceedings. But that does not mean that court shall not issue notice to such party. Even if it is assumed that petitioner did not respond to the notice issued under Order XXI Rule 22 of the Code, that only meant that he has no objection in respondent proceeding with the execution. When property of petitioner was proceeded against, he was entitled to get notice under Order XXI Rule 66 of the Code. Since that notice could not be served and respondent did not take steps for issue of notice execution petition was dismissed on 20.11.2008. I.A.3718 of 2008 was filed on 2.12.2008. Contention of petitioner that I.A. No.3718 of 2008 could not have been allowed requires consideration. Having regard to the facts and circumstances of the case I am persuaded to think that notwithstanding the length of delay involved (ten months) request of petitioner to review the order on I.A. No.3718 of 2008 should have been favourably considered by the court below. Having considered the rival contentions I am persuaded to think that executing court ought to have allowed the applications preferred by petitioner and given him an opportunity to contest the case. Resultantly, Writ Petition is allowed. Exhibit P2, common order is set aside. E.A.Nos.397 and 430 of 2008 are allowed and W.P(C) No.16634 of 2010 -: 4 :- the order on I.A.No.3718 of 2008 would stand reviewed. It will be open to the petitioner to raise his objection to I.A. No.3718 of 2008 before the executing court. That court shall decide the matter after hearing both sides. Parties shall appear in the executing on 19.08.2010. THOMAS P. JOSEPH, JUDGE. vsv