IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 OP(C).No. 999 of 2010(O) ------------------------------------ E.P.NO.184/2007 IN OS.NO.137/1998 of SUB COURT,ALAPPUZHA .................... PETITIONER: --------------------- MATHEW M.GEORGE, S/O.M.C.GEORGE, MANAGER AND POWER OF ATTORNEY HOLDER, MALIACKAL FINANCIERS, KUMARAKOM, KOTTAYAM DISTRICT. BY ADV. SRI.K.M.VARGHESE RESPONDENT(S): ---------------------------- T.A.KURUVILA, PROPRIETOR, KALPAKA PROCESSING COMPANY, RESIDING AT THURUTHITHARA HOUSE, EARA P.O.-686 534, ALAPPUZHA. BY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.999/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE E.P.NO.184 OF OF 2007 IN O.S.NO.137/1998 ON THE FILE OF THE SUB COURT, ALAPPUZHA. P2 COPY OF THE JUDGMENT DATED 4/11/2009 IN F.A.O.NO.316 OF 2009. P3 COPY OF THE ORDER DATED 25/5/2010 IN E.P.NO.1846 OF 2008 IN O.S.NO.137/1998ON THE FILE OF THE SUB COURT, ALAPPUZHA. P4 COPY OF THE 'B' DIARY PROCEEDINGS IN E.P.NO.184 OF 2007 ON THE FILE OF THE SUB COURT, ALAPPUZHA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.999 of 2010 -------------------------------------- Dated this the 29th day of July, 2011. JUDGMENT Respondent/judgment debtor is served sufficiently early, but there is no response. 2. Petitioner/decree holder challenges Ext.P3, order dated May 25, 2010 dismissing E.P.No.184 of 2007 in O.S.No.137 of 1998 for default. Petitioner obtained a decree for recovery of money in O.S.No.137 of 1998 of the court of learned Sub Judge, Kottayam on March 22, 2006. The decree certificate was transferred to the court of learned Sub Judge, Alappuzha for execution where petitioner filed execution petition (as E.P.No.184 of 2007). Executing court appointed a receiver to collect rent and profits from the property of respondent since it was already mortgaged to a bank. Challenging that order respondent filed F.A.O.No.316 of 2009 in this Court and by judgment dated December 8, 2009 this Court passed a conditional order setting aside the order appointing receiver on condition that respondent paid Rupees two lakhs to the petitioner within two weeks from the date of judgment. It is submitted, that condition was not complied and hence receiver appointed who was collecting rent and profits from the property of respondent. While so, execution petition was dismissed for default on May 25, 2010. That order is under challenge. Learned counsel has invited my attention to Ext.P3, order. In that order, it is stated that on May 25, 2010 when the execution petition was called there was OP(C) No.999/2010 2 representation for petitioner and the respondent but, when it was called on second and third occasion, there was no representation for petitioner and hence leaned Sub Judge thought that the matter may have been settled outside court, found no reason to grant further time as there is no prayer for that and the execution petition was dismissed. 3. Having regard to the facts submitted before me and particularly even on May 25, 2010 when the case was called petitioner was represented initially I am not inclined to think that there was gross negligence or laches on the part of petitioner in not representing when the case was called on the second and third occasions. Having regard to these aspects I am inclined to allow this petition. Resultantly this Original Petition is allowed and Ext.P3, order dated May 25, 2010 dismissing E.P.No.184 of 2007 in O.S.No.137 of 1998 of the court of learned Sub Judge, Alappuzha is set aside. Learned Sub Judge, Alappuzha who is executing the decree is directed to take back E.P.No.184 of 2007 on file and proceed in the matter as provided under law. THOMAS P.JOSEPH, Judge. cks