IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 CRP.No. 3378 of 2001(A) ----------------------- (AGAINST THE ORDER IN EA. 421 OF 2001 IN E.P. 593 OF 2000 IN OS.687/1987 of PRL.MUNSIFF'S COURT, ERNAKULAM ) REVN. PETITIONER/PETITIONER/DECREE HOLDER: ---------------------------------------------------------------------------- ALIKUTTY JOHN, AGED 39, W/O. JOHN PURAMKKALIL HOUSE, VENNALA P.O., COCHIN -25. BY ADV. SRI.S. SREEKUMAR RESPONDENTS/RESPONDENTS/JUDGMENT DEBTORS: --------------------------------------------------------------------------------- 1. AUDITYA FINANCE AND INVESTMENT (INDIA) LTD., ADMINISTRATIVE AND CONTROL OFFICE, GURUPRIYA BUILDING, M.G. ROAD, ERNAKULAM. 2. ADMINISTRATIVE OFFICER, AUDITYA FINANCE AND INVESTMENT (INDIA) LTD., ADMINISTRATIVE AND CONTROL OFFICE, GURUPRIYA BUILDING, M.G. ROAD, ERNAKULAM. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ORDERS ON 01/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON C.M.P.NO. 7055 OF 2001 IN C.R.P.NO. 3378 OF 2001 DISMISSED. 01.04.2008 SD/- K.T. SANKARAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. .................................................................................. C.R.P. No.3378 OF 2001 ................................................................................... Dated this the 1st April , 2008 O R D E R The petitioner is the decree holder. The Execution Petition was dismissed for default as the petitioner did not take steps for effecting newspaper publication for service of notice on the respondents. The petitioner filed an application for reviewing the order dismissing the Execution Petition for default. The court below, by the order impugned, dismissed that application. Since the respondents were not served with notice and that the dismissal of the application is for default on the part of the decree holder in not taking steps for service of notice, I do not think that for disposal of this Revision, it is necessary to serve notice on the respondents. 2. In the Execution Petition, since the judgment debtors were not served with notice, substituted service of notice by affixture was ordered. Notice to be affixed was returned stating that no building was available for affixture of the notice. The Executing Court directed the decree holder to take steps for effecting newspaper publication. Steps were to be taken by 21.05.2001. Since no steps were taken on the adjourned date, viz., 20.06.2001, the case was again adjourned to 30.06.2001. On 30.06.2001, the Execution Petition was dismissed for default since no steps were taken for news paper publication. The petitioner filed E.A. 421 of 2001 on 13.08.2001 to review the order dated 30.06.2001. The court below dismissed that application on the ground that though enough time was granted to cure the defects, the petitioner did not take steps and also on the ground that the application was barred by limitation under Article 124 of the Limitation Act. C.R.P. No.3378 OF 2001 2 3. On the facts of the case, it is clear that Rule 105 of Order XXI of the Code of Civil Procedure does not apply. Though Section 5 of the Limitation Act as such cannot be applied, the affidavit accompanying the application to review would indicate that there is sufficient explanation for delay. It is submitted by the counsel for the petitioner that the decree was passed on 29.11.1988 and if a fresh Execution Petition is filed, it would be barred by limitation. 4. In the facts and circumstances of the case, I am of the view that the petitioner should be afforded an opportunity to take out notice by publication for service of notice on the respondents. The order impugned is therefore set aside. The petitioner shall take necessary steps for publication within 15 days from the date fixed for appearance before the court below. The petitioner shall appear before the Executing Court on 26.05.2008. The Civil Revision Petition is allowed as above. K.T. SANKARAN, JUDGE. lk C.R.P. No.3378 OF 2001 3 K.T. SANKARAN, J. ........................................................ C.R.P. No. 3378 OF 2001 ......................................................... Dated this the 1st April, 2008 O R D E R