IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 OP(C).No. 2803 of 2011(O) ----------------------------------- EA. 131/2010 IN EP. 75/2010 IN OS.7/2000 of PRL.MUNSIFF COURT, KOCHI .................... PETITIONER. --------------------- 1. VIMALA, W/O.LATE BHASKAR RAO, AGED 79 YEARS, RESIDENT OF 48-D, MASJID MOTH, D.D.A. FLAT, NEW DELHI, NOW PUT UP AT PUSHPA VIHAR, NEW DELHI-110 017. 2. REGHUNATHA RAO, 60 YEARS, S/O.LATE BHASKAR RAO,48-D, MASJID MOTH, D.D.A. FLAT, NEW DELHI,(DIED). 3. VISWANATHA RAO, S/O.LATE BHASKAR RAO, 55 YEARS, RESIDING AT --DO-. 4. SREENATHA RAO, S/O.LATE BHASKAR RAO, 48 YEARS IN --DO. (PETITIONERS REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER R.SIVASANKAR RAO,S/O.RAJENDRA RAO,64 YEARS RESIDENT OF H.NO.X/1665,AMARAVATHY, FORTKOCHI.). BY ADV. SRI.T.A.NARAYANAN NAIR RESPONDENT(S): -------------------------- VIJAYAN, AGED 45 YEARS, S/O.LATE ANANTHA SIVAN, RESIDING IN THE NORTHERN SIDE (WESTERN PART) ROOM OF H.NO.X/1663, AMARAVATHY,FORTKOCHI- 682 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OPC. NO.2803/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE POWER OF ATTORNEY DTD. 2.4.1993. P2:- COPY OF THE DECREE IN OS. 7/2000. P3:- COPY OF THE DELAY CONDONATION IA. 1474/10 IN OS. 7/2000. P4:- COPY OF THE EA. 131/2010 E.P.75/2010 IN OS. 7/2000. P5:- COPY OF THE ORDER IN EA. 131/2010 EP. 75/2010 IN OS. 7/2000. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2803 of 2011 -------------------------------------- Dated this the 25th day of August, 2011. JUDGMENT The decree holders in E.P.No.75 of 2010 in O.S.No.7 of 2000 of the court of learned Principal Munsiff, Kochi having obtained an exparte decree against the respondent and others in the year, 2000 for their eviction from the plaint schedule building, filed execution petition in the year, 2010. Notice under Rule 22 of Order XXI of the Code of Civil Procedure (for short, “the Code”) was issued to the respondent and other judgment debtors. They appeared and preferred their objection. On the trial side they filed I.A.Nos.1475 of 2010 and 1474 of 2010 to set aside the exparte decree and to condone the delay in filing the said application. Obviously to explain the contention that respondent and other judgment debtors raised in the said application they examined the Process Server (who by then had retired) in chief on 21.10.2010. Petitioners who were being represented by the power of attorney (learned counsel tells me that the power of attorney is an Advocate) attempted to cross examine the Process Server but that was objected and, the court declined permission to the power of attorney to examine the witness. I am told that the order to that effect is under challenge in O.P.(C)No.659 of 2010 which is pending consideration. Since petitioners through their power of attorney proceeded with the execution proceeding to evict the respondent and others from the schedule building, respondent filed E.A.No.131 of 2010 in the executing court under Rule 26 of OP(C) No.2803/2011 2 Order XXI of the Code seeking stay of execution until I.A.Nos.1474 and 1475 of 2010 are disposed of. That application was opposed but allowed by the executing court as per Ext.P5, order, which is under challenge. 2. Learned counsel for petitioners contend that since there was no transfer of the decree for execution, executing court was not correct in invoking Rule 26 of Order XXI of the Code. Assuming that the inherent power under Section 151 of the Code could be used, it should have been for a limited period and not until disposal of I.A.Nos.1474 and 1475 of 2010 which may take a long time. Learned counsel contended that the executing court has misapplied the decision in Mathew Titus v. Thankamma Titus (1999 (3) KLT 538). 3. Fact remained that the application filed by respondent and others to set aside the exparte decree is pending consideration before the learned Munsiff on the trial side. That proceeding could not be completed on account of the objection raised as to the entitlement of power of attorney to cross examine the witness and petitioners have challenged the order declining permission to the power of attorney in this Court in O.P.(C) No.659 of 2010. Prima facie it is not due to any fault of respondent or other defendants that I.A.Nos.1474 and 1475 of 2010 could not be disposed of by this time. In the meantime, it is not disputed that petitioners wanted the executing court to execute the decree and evict respondent and other judgment debtors from the schedule building. 4. Now the question is whether the executing court is justified in granting relief to respondent and other judgment debtors by directing that OP(C) No.2803/2011 3 execution proceedings in E.P.No. 75 of 2010 will stand stayed until disposal of I.A.Nos.1474 and 1475 of 2010. Rule 26 of Order XXI of the Code may not have application on the facts of the case. That provision deals with the cases where the decree has been sent to another court for execution. But, it is not as if in such situation executing court has no power to grant relief to the respondent and other judgment debtors. In Dohara Beevi v. Bhaskaran (1989 (1) KLJ 456) this Court has held that inherent power under Section 151 of the Code is available to the executing court as well. There can also be no dispute that such inherent power has to be exercised with proper care and caution having regard to the facts and circumstances of the case. 5. Learned counsel submitted that the decision in Mathew Titus v. Thankamma Titus has been misapplied by the executing court in that there, it was found that when an appeal is presented beyond the prescribed time, technically speaking there is no appeal. According to the learned counsel, if that principle is applied, since the application to condone the delay has not so far been allowed, technically speaking there is no application to set aside the exparte decree pending before the trial court. But I must bear in mind that when an appeal is presented beyond the prescribed time accompanied by an application under Rule 3A of Order XLI of the Code there is a proper presentation of the appeal though, the appellate court is precluded from passing order on the appeal since the delay is not condoned and the appeal is not admitted. The same principle should apply in the facts of the case also. If that OP(C) No.2803/2011 4 be so I must say that there is a proper presentation of an application to set aside the exparte decree though the trial court could not pass any interim order on the said application since the delay is not so far condoned. 6. The executing court thought that having regard to the circumstances the execution proceeding must stand in abeyance until I.A.Nos.1474 and 1475 of 2010 are disposed of. I am not inclined to think that the said order has been passed by the executing court without jurisdiction or, it is against the principles regarding exercise of discretionary power of the court to call for interference by this Court under Article 227 of the Constitution. Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks