IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 WP(C).No. 5075 of 2009(O) ------------------------- OS.134/2005 of SUB COURT,NEYYATTINKARA .................... PETITIONERS: -------------------- 1. S. GIRIJA, W/O. RAVI, ASWATHY BHAVAN, KULATHINKARA VEEDU, MUNDAKONAM, THALAYIL DESOM ADHIYANNUR VILLAGE. 2. ASWATHY.G.R, D/O. GIRIJA, ASWATHY BHAVAN, KULATHINKARA VEEDU, MUNDAKONAM THALAYIL DESOM, ATHIYANNUR VILLAGE. 3. ATHIRA, D/O. GIRIJA, ASWATHY BHAVAN, KULATHINKARA VEEDU, MUNDAKONAM, THALAYIL DESOM, ATHIYANNUR VILLAGE. BY ADV. SRI.M.K.SHASHI KUMAR RESPONDENTS: ---------------------- 1. S. KRISHNAN, S/O. SANTHAN, PUTHRA VILA VEEDU, THALAYIL DESOM, ATHIYANNUR VILLAGE. 2. C. RAVI, S/O. CHELLAN, LEKSHMI BHAVAN, PARANKIMAMVILA, RUSSELPURAM.P.O, BALARAMAPURAM, ATHIYANNOOR VILLAGE. ADV. SRI.L.MOHANAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.5075/09 APPENDIX PETITIONERS' EXTS: EXT.P1 TRUE COPY OF THE SETTLEMENT DEED NO.1614/05 DATED 6/12/2005 EXECUTED IN FAVOUR OF THE 2ND AND 3RD RESPONDENTS. EXT.P2 TRUE COPY OF THE LICENCE NO.A4-250/08-09 DATED 26/7/08 IN FAVOUR OF THE IST PETITIONER. EXT.P3 TURE COPY OF THE TAX RECEIPT NO.B.1672260 DATD 18/7/08 ISSUED FROM THE VILLAGE OFFICER. EXT.P4 TRUE COPY OF THE CLAIM PETITION E ARB.322/08 DATED 22/7/06 IN E.P.NO.57/06 OF THE SUB COURT, NEYYATTINKARA. EXT.P5 TRUE COPY OF THE ORDER DTD.M16/12/06 IN E.A.NO.322/06 IN O.S.NO.134/05 OF THE SUB COURT, NEYYATTINKARA. EXT.P6 TRUE COPY OF THE REVIEW APPLICATION DATD 9/2/07 IN E.A.NO.69/07 IN E . P.NO.57/06. EXT.P7 TRUE COPY OF THE ORDER DATED 13/2/08 IN E.A.NO.69/07 IN O.S.NO.134/05 OF THE SUB COURT, NEYYATTINKARA. HARUN-UL-RASHID,J. ------------------------------- W.P.(C) NO.5075 OF 2009 ------------------------------- DATED THIS THE 9TH DAY OF NOVEMBER, 2010 JUDGMENT Petitioners are the claim petitioners in E.P.No.57/2006 in O.S.No.134/2005 on the file of the Sub Court, Neyyattinkara. The suit was filed by the lst respondent herein against the 2nd respondent for realisation of an amount of Rs.1,13,000/- with interest. The suit was decreed ex parte on 22/12/2005. The claim petitioners are wife and two daughters of the judgment debtor. It is stated in the writ petition that the judgment debtor was unable to contest the case, as he was put in jail in a criminal case during the relevant period and the petitioners were unaware of the pendency of the above case and passing of the ex pare decree. 2. The decree holder proceeded against the property having an extent of 7 cents belonging to the judgment debtor. The petitioners claimed title to the property on the strength of a settlement deed No.1614/2005 dated 6/12/2005. Ext.P1 is the -2- WP(C).No.5075/2009 settlement deed. The claim petition was filed stating that they have got absolute title in respect of the property and that they are residing in the property and eking out their livelihood by running a small workshop of akri items. It is also contended that they are labourers and therefore the property cannot be the subject matter of attachment and sale being exempted under Section 60 CPC. 3. Claim petition was posted to 16/12/2006 for evidence. On that day there was no appearance and therefore the court below dismissed the claim petition. Ext.P5 is the said order. In Ext.P5 it is stated that the claim petitioners absent and prayer rejected. Learned counsel for the petitioners submitted that the claimants filed an application for adjournment of the case stating the reasons for adjournment. The said prayer was rejected and the claim petition was dismissed. Subsequently, the petitioners filed E.A.No.69/07 for reviewing Ext.P5 order. Ext.P6 is the said application. The application for review was taken up for consideration on 13/2/2008. On that day the said petition was also -3- WP(C).No.5075/2009 dismissed stating that the petition has become infructuous as sale was over. Ext.P7 is the said order. 4. Exts.P5 and P7 orders are under challenge. The claim petition was dismissed on the date of posting for evidence. The prayer for adjournment was rejected. There is no consideration of the claim petition on merits. Subsequently, the application for review of the said order was also rejected by a cryptic order without examining the contentions of the applicants. It is seen that there is no consideration of the matter on merits at any point of time. 5. In the circumstances, this Court is of the view that an opportunity shall be given to the claim petitioners to substantiate their case. Exts.P5 and P7 are set aside only for the reason that the execution court failed to go into the merits of the contentions of the claim petitioners. The execution court shall consider and dispose of the claim petition on merits, after hearing the parties, within a period of six months from the date of appearance of the parties. The parties shall be afforded reasonable opportunity to adduce -4- WP(C).No.5075/2009 evidence. The parties shall appear before the court below on 6th December, 2010. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.