IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 WP(C).No. 24288 of 2006(N) -------------------------- (E.A.NO.172/02 IN E.P.NO.56/02 IN O.S.NO.318/86 OF SUB COURT, KOCHI) PETITIONER: --------------- MUTHOOT MINI FINANCIERS CHITTY FUND, KOZHENCHERRY, REPRESENTED BY ITS MANAGING PARTNER. BY ADV. MS.P.F.ROSY RESPONDENTS: ---------------- 1. M/S.CYRIL CUT PIECE CENTRE, M.G.ROAD, ERNAKULAM, KOCHI-16. 2. M.A.CYRIL, MOONTHINGAL HOUSE, (DECEASED) KARIPALAM, MATTANCHERRY, KOCHI-2, PARTNER, CYRIL CUT PIECE CENTRE, ERNAKULAM. ** 3. M.C.TITUS, MOONTHINGAL HOUSE, KARIPALAM, MATTANCHERRY, KOCHI-2, PARTNER, CYRIL CUT PIECE CENTRE, ERNAKULAM. ** 4. M.C.AUGUSTINE, MOONTHINGAL HOUSE, KARIPALAM, MATTANCHERRY, KOCHI-2, PARTNER, CYRIL CUT PIECE CENTRE, ERNAKULAM. ** 5. M.C.WILSON, MOONTHINGAL HOUSE, KARIPALAM, MATTANCHERRY, KOCHI-2, PARTNER, CYRIL CUT PIECE CENTRE, ERNAKULAM. ** R3 TO R5 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED R2 AS PER ORDER DATED 23.2.2011 ADV. MR.BABU CHERUKARA FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24288 of 2006(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: DECREE DATED 30.5.1988 IN O.S.NO.318/1986 OF THE PRINCIPAL SUB COURT, ERNAKULAM. EXT.P2: E.A.NO.172/2002 FILED BEFORE THE SUB COURT, KOCHI. EXT.P3: E.A.NO.361/2003 TO RESTORE EXT.P2 ON THE FILE AND TO REVIEW THE ORDER DATED 12.11.2003. EXT.P4: ORDER DATED 21.12.2005 PASSED BY THE LEARNED SUBORDINATE JUDGE, KOCHI DISMISSING E.A.NO.172/02 IN E.P.NO.56/2002 IN O.S.NO.318/86. EXT.P5: ORDER DATED 13.7.2006 PASSED BY THE LEARNED PRINCIPAL SUBORDINATE JUDE, KOCHI IN E.A.NOS.88/06 & 89/06 IN E.P.NO.56/02 IN O.S.NO.318/86. RESPONDENTS' EXHIBITS: NIL ...... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.24288 Of 2006 ---------------------- Dated this the 29th day of June, 2011. J U D G M E N T The petitioner is the decree holder in O.S.No.318/1986 on the file of the Sub Court, Kochi. The petitioner filed E.P.No.56/2002 for execution of the decree in O.S.No.318/1986. As per the decree, an amount of Rs.2,55,526/- is due and payable to the decree holder by the respondents/judgment debtors. An execution petition was originally filed on 24.9.1992 before the Sub Court, Ernakulam and subsequently transferred to Principal Sub Court, Kochi and numbered as E.P.No.56/2002. The judgment debtors 3 to 5 appeared before the execution court at Kochi. The petition was adjourned to 12.9.2002 for filing objection and for taking further steps. The E.P. happened to be dismissed for default as there was no representation on either side. Subsequently, the decree holder filed Ext.P2 petition praying to set aside the order of dismissal dated 12.9.2002 and to rehear the matter. In the affidavit filed in support of the petition for setting aside the order, averred that the counsel ::2:: W.P.(C).No.24288 Of 2006 could not reach the court on 12.9.2002 due to traffic block in the city and therefore, he could not attend the case when it was called. The execution court dismissed the E.P stating that 'Steps not taken. No representation. The E.P dismissed for default.' Subsequently, the decree holder filed E.A.No.172/2002 for restoring the E.P which was dismissed for default. On 12.11.2003 the execution court was pleased to dismiss E.A.No.172/2002 stating that steps were defective. The petitioner filed E.A.No.361/2003 praying to restore the E.A.No.172/2002 on file. A detailed affidavit dated 24.11.2003 was also filed in support of the petition to review the order dated 12.11.2003. Subsequently, the execution court allowed E.A.No.361/2003 and restored E.A.No.172/2002. 2. E.A.No.172/2002 was considered by the execution court and passed Ext.P4 order. In Ext.P4 order, the court dismissed E.A.No.172/2002 mainly for the reason that the affidavit filed in support of the E.A was the affidavit of the lawyer and not that of the decree holder. It is true that in such circumstances, the decree holder could have filed the affidavit in ::3:: W.P.(C).No.24288 Of 2006 support of the petition. Simply for a procedural irregularity, the learned Judge ought not have dismissed the E.A especially when the decree holder is left with no remedy to execute the decree passed in the case. The execution court did not consider E.A.No.172/2002 on merits and declined the relief of restoration on the technical ground that the petition is supported by the lawyer's affidavit instead of the party's affidavit. 3. After Ext.P4, the decree holder filed E.A.No.88/2006 for restoration of E.P.No.56/2002. E.A.No.89/2006 was filed to condone the delay in filing E.A.No.88/2006. E.A.Nos.88 & 89 of 2006 was supported by the decree holder's affidavit. Ext.P5 is the order passed by the execution court. As I said earlier, Ext.P4 order was passed dismissing E.A.No.172/2002, application for restoring E.P.No.56/2002, on technical grounds. The execution court did not consider the case of the decree holder for the reason that the petition is not supported by the decree holder's affidavit. Dismissal of E.A.No.172/2002 has caused gross miscarriage of justice to the decree holder. There is no consideration of the grievance of the petitioner on merits. In the ::4:: W.P.(C).No.24288 Of 2006 above facts and circumstances of the case, this Court is of the view that the matter requires reconsideration by the execution court. 4. Accordingly, Exts.P4 & P5 orders are set aside. The execution court shall consider E.A.No.172/2002 afresh and shall pass orders within a period of four months from today. The execution court shall grant an opportunity to the decree holder to cure the defect, if any, in E.A.No.172/2002. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-