IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 23515 of 2010(O) -------------------------- AGAINST THE ORDER DATED 13/07/2010 IN EP.518/2009 IN OS.92/2004 of II ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): JUDGMENT DEBTORS/DEFENDANTS: --------------------------------------------------------------------------------- 1. N.OMANA, AGED 77 YERAS, D/O.NARAYANI, KURANGANOOR HOUSE, PLAMMOODU JUNCTION, PATTOM P.O.,THIRUVANANTHAPURAM. 2. N.RAJAMMA, AGED 75 YEARS, D/O.NARAYANI, KURUNGANOOR HOUSE, PLAMMOODU JUNCTION, PATTOM P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.BIJU BALAKRISHNAN, SMT.V.K.AMBIKA, SRI.NELLIMOODU UDAYAKUMAR. RESPONDENT(S): DECREE HOLDER/PLAINTIFF: ------------------------------------------------------------------------ MRS.SONI ABRAHAM, W/O.ABRAHAM, KURUNGANOOR VILA PUTHEN VEEDU, KURUNGANOOR MURI, KOWDIAR VILLAGE, THIRUVANANTHAPURAM - 695 008. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. ------------------------------------- W.P.(C) No.23515 OF 2010 -------------------------------------- Dated this the 28th day of July, 2010 J U D G M E N T ~~~~~~~~~~~ Petitioners are sisters and learned counsel for petitioners would say relying on Exts.P1 and P2 that they are placed in a very pathetic condition with nobody to look after them in their old age and are now taken care of by the Kerala State Women’s Commission. While so, they got notice of a petition to execute a final decree for partition in O.S.No.92/2004 of the Court of learned Additional Sub Judge-II, Thiruvananthapuram. On enquiry they learned that an exparte, preliminary and final decree were passed in the suit against them for division of the property. Petitioners say that they did not get any summons or notice in the suit or application for passing final decree. It is also their case that husband of petitioner No.1, Hariharan, had left her years back and since then he was not heard of. It appeared that according to the respondent/plaintiff, the said Hariharan (purportedly) on the strength of a power of attorney allegedly executed by petition No.1 transferred her right in the W.P.(C) No.23515/2010 2 suit property to the husband of respondent who in turn assigned his right to the respondent. Petitioners say that no such power of attorney was executed in favour of Hariharan. They suspect foul play in the matter. Learning about the execution proceedings they approached the Executing Court and filed Ext.P6, objection to the execution petition and Ext.P7 application for review of the order dated 13.7.2010 in the execution petition directing delivery of property to the respondent. Executing court dismissed Ext.P7 application for review and ordered delivery to be effected on 22.7.2010. Petitioners say that delivery could not be effected since the Amien found that property overlapped building of petitioners. While so, there was some suggestion from the respondent for a settlement and now the case is posted on 31.7.2010. In the meantime petitioners filed Ext.P5 application (I.A.No.15759/2010) in the trial court on 17.7.2010 to set aside exparte decrees against them. That application remains to be disposed of. Apprehension of petitioners is that if before that application is disposed of they are evicted from the suit property, they will be without any shelter. Petitioners therefore, request for a direction to the W.P.(C) No.23515/2010 3 learned Additional Sub Judge-II, Trivandrum to dispose of Ext.P5 application as expeditiously as possible and in the meantime, to keep delivery of property in abeyance. Learned counsel has invited my attention to Exts.P1 and P2, paper cuttings allegedly relating to the petitioners and describing the condition in which they are allegedly placed. 2. Having regard to the facts and circumstances of the case, I consider it necessary that Ext.P5 application (I.A.No.15759/2010) is disposed of at the earliest. It is only just and proper that proceedings for delivery of property in E.P.No.518/2009 is kept in abeyance for some time. 3. Resultantly, this Writ Petition is allowed as follows: i) Learned Additional Sub Judge-II, Trivandrum is directed to dispose of Ext.P5 application (I.A.No.15759/2010) as early as possible on preliminary steps on it being completed. ii) Delivery of property as per order in E.P.No.518/2009 in O.S.No.92/2004 of the court of learned Additional Sub Judge-II Trivandrum, will stand in abeyance for a period of one month W.P.(C) No.23515/2010 4 from this day. Learned Sub Judge shall make every endeavour to dispose of Ext.P5 application on or before the expiry of the said period. (THOMAS P. JOSEPH, JUDGE) ps