IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 OP(C).No. 2830 of 2011(O) ------------------------- EP NO.164/2010 IN OS.101/1989 of MUNSIFF COURT, VAIKOM .................... PETITIONER(S): -------------------- NABEESA BEEVI, THOTTINOZHATHU VEETTIL, THALAYOLAPARAMBU KARA, VAIKOM TALUK, KOTTAYAM DISTRICT, THALAYOLAPARAMBU 686 605, REP. BYHER DAUGHTER AND GUARDIAN LAILA BEEVI. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA SRI.K.S.BALAKRISHNAN RESPONDENT(S): --------------- 1. SULAIMAN, S/O.NAVURKANI RAWTHER, RESIDING AT MAHI MANZIL, KOTTIPPLIPARAMBIL, VELOORKARA, KOTTAYAM VILLAGE, KOTTAYAM TALUK, P.O.KOTTAYAM 686 501. 2. P.S.HAMSA, S/O.SAIDUMOHAMMED MOOSAMBI, PULAPARAMBIL HOUSE, VELOORKARA VILLAGE, KOTTAYAM TALUK, KOTTAYAM P.O. - 686501. 3. ABDUL RAHIM, S/O.PAREETH, MANIPARAMBIL HOUSE, VELOORKARA, VELOORKARA VILLAGE, KOTTAYAM TALUK, KOTTAYAM P.O. - 686501. 4. SULEKHA BEEVI, W/O.MOIDEEN RAWTHER, THOTTINEZHATH VEETTIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKKOM TALUK, P.O.THALAYOLAPARAMBU 686605. 5. SALIM, MOIDEEN RAWTHER, THOTTINEZHATH VEETTIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKKOM TALUK, P.O.THALAYOLAPARAMBU 686605. 6. NASEEMA, D/O.MOIDEEN RAWTHER, THOTTINEZHATH VEETTIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKKOM TALUK, P.O.THALAYOLAPARAMBU 686605. 7. SEENATH, D/O.MOIDEEN RAWTHER, THOTTINEZHATH VEETTIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKKOM TALUK, P.O.THALAYOLAPARAMBU 686605. 8. HAIRUNNISSA, D/O.MOIDEEN RAWTHER, THOTTINEZHATH VEETTIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKKOM TALUK, P.O.THALAYOLAPARAMBU 686605. OP(C) NO.2830/2011 2 9. NISSAR, S/O.MOIDEEN RAWTHER, THOTTINEZHATH VEETTIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA, VAIKKOM TALUK, P.O.THALAYOLAPARAMBU 686605. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)2830/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 6.1.2011 ISSUED BY AMRITA INSTITUTE OF MEDICAL SCIENCE IN THE NAME OF NABEESA BEEVI EXT.P2 -DO- -DO- IN THE NAME OF AJARA BEVI EXT.P3 TRUE COPY OF JUDGMENT IN OS NO.101/89 BY PASSING PRELIMINARY DECREE BYMUNSIFF COURT, VAIKOM EXT.P4 TRUE COPY OF JUDGMENT IN IA NO.911/2008 IN OS 101/89 OF PASSING OF FINAL DECREE IN OS 101/89 OF THE MUNSIFF COURT, VAIKOM EXT.P5 TRUE COPY OF THE FINAL DECREE DRAWN IN THE STAMP PAPER DATED 11.3.2009 IN IA NO.911/2008 INOS 101/89 OF THE MUNSIFF COURT, VAIKOM EXT.P6 TRUE COPY OF THE IA NO.1129/2001 IN OS NO.101/89 FILED BY THE PETITIONER PRAYING TO CONDONE THE DELAY IN FILING AN IA TO SET ASIDE THE EXPARTE DECREE ON THE FILE OF MUNSIFF COURT,VAIKOM EXT.P7 TRUE COPY OF THE IA NO.1131/2011 IN OS NO.101/89 FILED BY THE PETITIONER PRAYING TO SET ASIDE THE DECREE IN OS NO.101/89 ON THE FILE OF MUNSIFF COURT, VAIKOM EXT.P8 TRUE COPY OF ORDER DATED 19.8.2011 IN EP NO.164/2010 IN OS NO.101/89 ON THE FILE OF MUNSIFF COURT, VAIKOM EXT.P9 TRUE COPY OF THE ORDER DATED 19.8.2011 IN EA NO.297/2011 IN EP NO.164/2010 IN OS NO.101/89 ON THE FILE OF MUNSIFF COURT, VAIKOM EXT.P10 TRUE COPY OF THE SKETCH ISSUED BY THE CENTRAL SURVEY OFFICE, TRIVANDRUM REGARDING THE LIE OF PROPERTIES INCLUDING PROPERTIES IN SY.NO.224/29, 224/33 OF VADAYAR VILLAGE WITH SETTLEMENT REGISTER EXT.P11 TRUE COPY OF THE SKETCH PREPARED BY THE SURVEYOR IN COMMISSION IN OS NO.17/89 ON THE FILE OF THE MUNSIFF COURT, VAIKOM. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2830 of 2011 -------------------------------------- Dated this the 26th day of August, 2011. JUDGMENT Petitioner is the judgment debtor in E.P.No.164 of 2010 in O.S. No.101 of 1989 of the court of learned Munsiff, Vaikom. A preliminary decree for partition was passed on 17.01.2009 followed by a final decree on 11.03.2009. When that decree was sought to be executed, petitioner represented by her daughter appeared in the executing court and filed Exts.P6 and P7, applications to set aside the exparte preliminary and final decrees and to condone the delay in filing the application to set aside the exparte decrees. (Those applications are filed on 14.07.2011). There was also an application for stay of execution proceedings which the learned Munsiff dismissed by Ext.P9, order. It is contended that as per Ext.P8, order the executing court directed eviction of petitioner on 31.08.2011 and report on 01.09.2011. Petitioner wants a direction to the executing court to dispose of Exts.P6 and P7, applications before the decree is executed. Learned counsel has placed reliance on Ext.P1, certificate to contend that petitioner was mentally unsound during the time she was set exparte. 2. Having regard to the various circumstances I am inclined to think that these are matters which the executing court has to consider. I do not think that on the facts of the case a direction is required from this Court as to the O.P(C) No.2830 of 2011 2 procedure to be adopted by the executing court. But I make it clear that it is open to the petitioner to request the executing court to dispose of Exts.P6 and P7, applications as early as possible. Original Petition is disposed of with the above observation. THOMAS P.JOSEPH, Judge. cks