IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 19996 of 2010(O) -------------------------- E.P.NO.574/2009 IN OS 79/2009 OF PRINCIPAL SUB COURT, ERNAKULAM PETITIONER(S): --------------- SANTHOSH KUMAR P.K., AGED 40, S/O.KUMARAN, PULICKAL HOUSE, PATTIMATTOM P.O., KUNNATHUNADU, ERNAKULAM. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENT(S): --------------- 1. THOMAS K.JOY, S/O.KURUVILA, AGED 52 YEARS, MULAMOOTTIL HOUSE, PUTHUPALLY P.O., PUTHUPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, NOW RESIDING AT 14904, DONNA DRIVE SILVER SPRING, MD 20905, USA. 2. PONNAMMA K.JOY, W/O.THOMAS K.JOY, AGED 51, MULAMOOTTIL HOUSE, PUTHUPALLY P.O., PUTHUPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, NOW RESIDING AT 14904, DONNA DRIVE SILVER SPRING, MD 20905, USA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/06/2010, ALONG WITH WP(C) NO.20049/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) Nos.19996 & 20049 of 2010 -------------------------------------- Dated this the 28th day of June, 2010. JUDGMENT These Writ Petitions concern execution of decree in O.S.No.79 of 2009 of the court of learned Principal Sub Judge, Ernakulam. Respondents/decree holders who obtained a decree for mandatory injunction for removal of a structure allegedly put up by petitioner and other judgment debtors have sought execution of the decree in E.P.No.574 of 2009. W.P.(C) No.19996 of 2010 is filed by judgment debtor No.1 as if it is on behalf of judgment debtor No.3 stating that the latter has gone to Idukki in connection with some personal matter and hence is not available to file the Writ Petition. W.P.(C) No.20049 of 2010 is filed by judgment debtor No.1 on his own. In both these petitions it is stated that defendant No.2 to whom the properties originally belonged was a lunatic in respect of whom his sister had filed a proceeding before the learned District Judge under provisions of the Mental Health Act as O.P.No.557 of 2007. While so, defendant No.2 expired. According to the petitioner, the suit was decided exparte on 17.06.2009 and he has filed I.A.No.4281 of 2010 to set aside the exparte decree and I.A.No.4283 of 2010 to condone the delay in filing that application. In the meantime, respondents are attempting to execute the decree. Petitioner along with judgment debtor No.3 has filed application under Order 21 Rule 26 of the Code of Civil Procedure (for short, “the Code”) in the executing court for stay of execution until disposal of the application to set aside exparte WP(C) Nos.19996 & 20049/2010 2 decree. Grievance of the petitioner is that executing court has not disposed of that application but proceeds with execution of the decree. Learned counsel states that so far as judgment debtor No.3 is concerned her only place of residence is the suit property and if she is evicted she will be thrown into the road. Learned counsel seeks a direction to the executing court to dispose of the application under Order 21 Rule 26 of the Code and until such disposal to keep execution proceedings in abeyance. 2. So far as W.P.(C) No.19996 of 2010 is concerned, that petition is filed by petitioner as if it is on behalf of judgment debtor No.3 for the reason that she is out of station for the time being. Petitioner is not a power of attorney holder of judgment debtor No.3. It is also not as if judgment debtor No.3 cannot file a petition on her own. Mere absence of judgment debtor No.3 temporarily from her place of residence as she had to attend a personal matter at Idukki is not a ground to entitle petitioner to file a Writ Petition on behalf of judgment debtor No.3. Therefore I do not propose to entertain W.P.(C) No.19996 of 2010. 3. So far as W.P.(C) No.20049 of 2010 is concerned, petitioner in his capacity as judgment debtor No.1 has filed that petition. Having regard to the circumstances stated by learned counsel I direct the executing court to dispose of the application preferred by petitioner and judgment debtor No.3 under Order 21 Rule 26 of the Code at the earliest and, the execution of decree shall stand in abeyance until the expiry of five (5) days from the date of disposal WP(C) Nos.19996 & 20049/2010 3 of the application. Resultantly, i. W.P.(C) No.19996 of 2010 is closed. ii. W.P.(C) No.20049 of 2010 is disposed of in the following lines: (a) Executing court is directed to dispose of the application preferred by judgment debtor Nos.1 and 3 under Order 21 Rule 26 of the Code. (b) Execution of decree in O.S.No.79 of 2009 shall stand in abeyance until the expiry of five (5) days from the day on which application under Order 21 Rule 26 of the Code is disposed of. THOMAS P.JOSEPH, Judge. cks