IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).NO. 5607 OF 2010(O) ---------------------------------------- AGAINST THE ORDER IN EA 8/2008 EP 16/2006 IN MOP.69/1999 OF PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): ------------------------- K.T.SUDEVAN, S/O. K.V.THANKAPPAN, AGED 32 YEARS, IDAYODUKUNNU PARMBU HOUSE, MUDAPPALLUR ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.ANTONY MATHEW RESPONDENT(S): --------------------------- 1. DHANAREKHA, W/O. KUTTAPPAN, CHIRUKKAL VEEDU, PAZHAMBALAKODE PALAKKAD DISTRICT. 2. KUTTAPPAN,S/O. KRISHNAN, KUMPALAPADI KALATHIL, PANTHALAMPADATHIL, PANNIANKARA, ALATHUR, PALAKKAD DISTRICT. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 SRI.P.S.APPU FOR R1 SRI.A.R.NIMOD FOR R1 SRI.C.A.ANOOP FOR R1 SRI.O.RAMACHANDRAN NAMBIAR FOR R2 SRI.GEEN T.MATHEW FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF E.A. NO.9 OF 2006 IN E.P. NO.16 OF 2006 IN M.O.P. NO.69 OF 1999 BEFORE THE FAMILY COURT, PALAKKAD. EXHIBIT P2 TRUE COPY OF COUNTER FILED BY THE FIRST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S. NO.2681 OF 2009 BEFORE THE SUB COURT, PALAKKAD. EXHIBIT P4 TRUE COPY OF THE PETITION E.A. NO.597 OF 2009 IN E.A. NO.8 OF 2008 IN E.P. NO.16 OF 2006 IN M.O.P. NO.69 OF 1999 BEFORE THE SUB COURT, PALAKKAD DATED 5.11.2009. EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 8.12.2009 IN E.A. NO.597 OF 2009 IN E.A. NO. OF 2008 IN E.P. NO.16 OF 2006 IN M.O.P. NO.69 OF 1999 BEFORE THE SUB COURT, PALAKKAD. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 8.1.2010 IN E.A. NO.597 OF 2009 IN E.A. NO.8 OF 2008 IN E.P NO.16 OF 2006 IN M.O.P. NO.69 OF 1999 BEFORE THE SUB COURT, PALAKKAD. EXHIBIT P7 TRUE COPY OF THE SALE PROCLAMATION DATED 9.1.2010 FOR THE SALE OF FIRST ITEM OF THE PROPERTY IN THE SALE AGREEMENT DATED 16.1.2004. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.5607 of 2010 ==================================== Dated this the 4th day of June, 2010 J U D G M E N T Respondent No.1 obtained a decree for maintenance against respondent No.2 in M.O.P. No.69 of 1999 of the court of learned Sub Judge, Palakkad. Pursuant to that order respondent No.1 filed execution petition in the Family Court concerned. That court transmitted the decree to the Sub Court, Palakkad for execution of the order against respondent No.2. In the meantime petitioner preferred claim petition, E.A. No.9 of 2006 in the Family Court which also was transmitted to the Sub Court, Palakkad where it was renumbered as E.A.No.8 of 2008. According to the petitioner property being proceeded against for realisation of amount due to respondent No.1 is in his possession as per an agreement for sale. Claim petition was entertained and posted for enquiry as last chance on 12.10.2009. But on that day petitioner and counsel were absent and the claim petition was dismissed. That was followed by petitioner filing E.A. No.597 of 2009 for restoration of E.A. No.8 of 2008. That application was opposed by respondent No.1 stating that claim petition itself is the result of W.P(C) No.5607 of 2010 -: 2 :- collusion between petitioner and respondent No.2. Learned Sub Judge observing that there is lack of bona fides on the part of petitioner dismissed E.A. No.597 of 2009. Hence this Writ Petition. Learned counsel for petitioner sought an opportunity to adduce evidence in support of the claim petition (E.A.No.8 of 2008). Learned counsel for respondent No.1 asserted that petitioner has no right, title or interest over the property attached and that claim is made to protract execution proceeding at the instance of respondent No.2. Learned counsel for respondent No.2 denied the allegation of collusion between respondent No.2 and petitioner. 2. It is true that petitioner was given opportunity to adduce evidence on 12.10.2009 and that day there was no representation for the petitioner. But it is not shown that absence of petitioner in court on that day was wilful. Having regard to the facts and circumstances stated I am inclined to give petitioner an opportunity to adduce evidence in support of E.A. No.8 of 2008 but on terms considering the fact that respondent No.1 was not able to realise the fruits of the decree in her favour from 1999 onwards and the delay was occasioned by the claim petition also. Resultantly this Writ Petition is allowed on condition that W.P(C) No.5607 of 2010 -: 3 :- petitioner deposited Rs.3,000/- (Rupees Three thousand only) in the executing court within three weeks from today for payment to respondent No.1. On such deposit, Ext.P6 order on E.A. No.597 of 2009 will stand set aside and E.A. No.8 of 2008 will stand restored to file. Parties will get opportunity to adduce evidence in support of their respective contentions in E.A. No.8 of 2008. The executing court shall dispose of E.A. No.8 of 2008 within three months from the date of receipt of copy of this judgment untrammelled by the finding regarding merit of the claim made in Ext.P6, order. In case costs as aforesaid is not deposited, this Writ Petition will stand dismissed in confirmation of Ext.P6, order. THOMAS P. JOSEPH, JUDGE. vsv