IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 F.A.O.No. 171 of 2009 ----------------------------------- AGAINST THE ORDER DATED 13/03/2009 IN EA 294/08 IN EP 57/04 IN L.A.R.277/1983 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT/PETITIONER/DECREE HOLDER: ---------------------------------------------------------------------- MATHAI PAULOSE, KEETALIL HOUSE, PLAMUDY.P.O, KOTHAMANGALAM, REP.BY THE POWER OF ATTORNEY HOLDER K.P.SUBASH, KEETALIL HOUSE, PLAMUDY.P.O., KOTHAMANGALAM. BY ADV. SRI.ABRAHAM P.GEORGE SMT.K.V.LEKSHMY RESPONDENT/RESPONDENT/JUDGMENT DEBTOR --------------------------------------------------------------------------------- STATE OF KERALA, REP.BY THE DISTRICT COLLECTOR, ERNAKULAM. SENIOR GOVERNMENT PLEADER SRI.P.K.BABU THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & M.L.JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No.171 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of January 2010 JUDGMENT Basheer, J. This appeal is at the instance of the decree holder in a Land Acquisition Reference case. He impugns the order passed by the execution court refusing to restore the execution petition (E.P.No.57/04) to the file. 2. The court below passed the impugned order holding that the petition for restoration was barred by time in as much as the Execution Petition was closed on November 12, 2007 and the restoration petition had been filed only on April 1, 2008. Learned counsel for the appellant submits that the view taken by the learned Judge is wholly unsustainable. 3. It is the admitted position that the respondent had deposited a sum of Rs.4,64,399/- towards the decretal sum on March 30, 2004. Thereafter, the decree holder had filed E.A.395/05 and obtained an order of attachment of certain amount lying with the Cochin Refinary, the garnishee. 4. The Execution Petition and the Execution Application referred to above were dismissed by the court below for default. The said order was challenged by the appellant before this court in Writ Petition No.7573/07. By the judgment dated May 30, 2007, this court disposed of the writ petition directing the court below to restore the Execution Petition as well as the Execution Application and dispose them of on merit after hearing all the affected parties. F.A.O.No.171 OF 2009 :: 2 :: 5. It is contended by the learned counsel that the Execution Petition stood posted before the court below on November 29, 2007. However, the case was not called before the court on that date. Appellant was all along under the impression that the case would be posted before the bench at a later point of time. In the meanwhile, on January 7, 2008 appellant filed a calculation statement indicating the amount due from the respondent to the tune of Rs.2,27,132/- as on the date of filing of the said statement. 6. Shortly thereafter to the surprise of the appellant he came to know that the Execution Petition was closed by the court below on November 12, 2007 after advancing the hearing suo motu. The court below passed that order taking note of the deposit of Rs.1,39,920/- made by the respondent on November 12, 2007. Immediately, appellant preferred E.A.294/2008 on April 1, 2008 for restoration. But the court below dismissed the said application on the ground that it was time barred. 7. We have heard learned counsel for the appellant and the learned Government Pleader. We have perused the lower court records which were called for by us in the light of the submissions made by the appellant at the bar. 8. Having perused the lower court record, we are satisfied that there is considerable force in the contentions raised by the learned counsel. It is beyond controversy that the court below had suo motu advanced the hearing of the Execution Petition after noticing the remittance of Rs.1,39,920/- by the respondent. In this context, it may be noticed that the said sum of Rs.1,39,920/- was admittedly due from by the respondent ever since 2004 or even earlier. This F.A.O.No.171 OF 2009 :: 3 :: amount was deposited by the respondent only in October 2007 apparently overlooking the fact that the interest payable on the amount due continued to mount. 9. In any view of the matter, the court below ought to have put the appellant on notice before closing the Execution Petition. Hearing ought to have been advanced only after giving notice. We do not propose to make any further comment or observation on the contentions raised by the appellant with regard to the amounts due under certain other heads at this stage. 10. In the facts and circumstances of the case, we are satisfied that the impugned order is liable to be set aside. We do so. The court below shall restore the Execution Petition and all connected petitions which were closed by it on November 12, 2007 and dispose them off in accordance with law after affording sufficient opportunity of hearing to the appellant and the respondent. 11. Appellant and respondent shall appear before the court below on February 18, 2010. Registry shall send back the lower court records to the court below forthwith. Appeal is disposed of in the above terms. A.K.BASHEER, JUDGE M.L.JOSEPH FRANCIS, JUDGE jes