IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 WP(C).NO. 22894 OF 2010(O) ---------------------------------------- OS.743/2007 OF ADDL.MUNSIFF COURT, ALAPPUZHA .................... PETITIONER(S): --------------------- OMANA, W/O. UDAYAN, THAIPARAMBIL HOUSE, KUNNUMMA VILLAGE, KUTTANADU, ALAPPUZHA. BY ADV. SRI.P.VINODKUMAR RESPONDENT(S): ------------------------ R.ANILKUMAR, S/O. RAGHAVAN, ADITHYA, MULLACKAL, ALAPPUZHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.22894 of 2010 ==================================== Dated this the 22nd day of July, 2010 J U D G M E N T Judgment debtor in E.P.No.47 of 2009 in O.S.No.743 of 2007 of the court of learned Munsiff Alappuzha has filed this Writ Petition narrating her pitiable condition. Petitioner along with her husband (respondent No.2 in E.P. No.47 of 2009) are defendants in a suit for specific performance of an agreement for sale. They remained ex parte and following that learned Munsiff passed an ex parte decree on 15.02.2009. Learned counsel for petitioner has a contention that even the ex parte is not legal and valid in that notwithstanding absence of petitioner and her husband the court was bound to consider whether discretionary relief of specific performance ought to have been granted in favour of respondent- plaintiff. However, it is not necessary for me to go into that question in this proceeding. Ex parte decree was followed by I.A. No.1227 of 2009 filed by husband of petitioner on 23.03.2009 for himself and on behalf of petitioner to set aside the ex parte decree. He also filed I.A. No.1226 of 2009 to condone delay in filing I.A. No.1227 of 2009. It happened in the meantime according W.P(C) No.22894 of 2010 -: 2 :- to the petitioner, that her husband eloped with another lady and did not care for her and her minor children, not to say about the pending case. In the circumstances I.A. Nos.1226 and 1227 of 2009 ended in dismissal for default on 28.01.2010. Petitioner filed I.A. No.2008 of 2010 to restore I.A. Nos.1226 and 1227 of 2009. That application is posted on 29.07.2010. In the meantime respondent started proceeding for execution of the decree in his favour and filed E.P. No.47 of 2009. Petitioner filed Ext.P4, E.A.No.230 of 2010 to stay execution of the decree. That application was dismissed stating that since there is no suit pending order XX1 Rule 29 of the Code of Civil Procedure has no application. That was followed by an order for delivery of property in favour of respondent. Petitioner states that she, along with two minor children are residing in the house in question and if delivery is effected and they are thrown out they have no other shelter. Petitioner states that she has valid contentions to be urged in the suit. According to the petitioner it was merely as security for the loan transaction that the alleged agreement for sale was executed. In the circumstances petitioner seeks a direction to the learned Munsiff, Alappuzha to dispose of I.A. No.2008 of 2010 at the earliest and in the meantime to keep W.P(C) No.22894 of 2010 -: 3 :- further proceedings in execution in abeyance. 2. It is true that E.A. No.230 of 2010 filed by petitioner was dismissed by the executing court. It is also a fact that I.A. No.2008 of 2010 filed by petitioner for restoration of I.A. Nos.1226 and 1227 of 2009 which were dismissed for default is also pending consideration on the trial side. If before I.A. No.2008 of 2010 is disposed of and petitioner is send out from the property she will be put to inconvenience and hardship. Having regard to the circumstances stated I am inclined to direct the learned Munsiff to dispose of I.A. No.2008 of 2010 at the earliest and further direct that in the meantime delivery of the property shall be kept in abeyance. Resultantly, Writ Petition is allowed in the following lines: (i) Learned Munsiff, Alappuzha is directed to dispose of I.A. No. 2008 of 2010 if preliminary steps are over as expeditiously as possible and at any rate within two weeks from the date of receipt of a copy of this judgment. W.P(C) No.22894 of 2010 -: 4 :- (ii) It is directed that delivery of property pursuant to the order in E.P. No.47 of 2009 in O.S. No.743 of 2007 of the ww court of learned Munsiff, Alappuzha will stand in abeyance till the expiry of seven (7) days from the date on which I.A. No.2008 of 2010 is disposed of. THOMAS P. JOSEPH, JUDGE. vsv W.P(C) No.22894 of 2010 -: 5 :-