IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 OP(C).No. 627 of 2011(O) ------------------------------------ (AGAINST THE ORDER DATED 02/02/2011 PASSED IN EP NO.266/2010 IN OS.NO.516/1993 OF SUBORDINATE JUDGE'S COURT, PALAKKAD) PETITIONER ------------------- SUBRAMANIAN, S/O.RADHAKRISHNAN, KODUMBU, KODUMBU PO, OLASSERRY AMSOM & DESOM, PALAKKAD TALUK. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU.M.P RESPONDENT(S): -------------------------- 1. K.V.KARUPPASWAMY,S/O.VELAYUDHAN, KODUMBU , KODUMBU PO,OLASSERRY AMSOM & DESOM, PALAKKAD TALUK.PIN- 678 551 2. RADHAKRISHNAN,S/O.SETHU MATHALI, KODUMBU KODUMBU PO,OLASSERRY AMSOM & DESOM, PALAKKAD TALUK.PIN-678 551 3. KANAKAM,W/O.RADHAKRISHNAN, DO. DO.PIN-678 551 4. KRISHNAVENI,D/O.RADHAKRISHNAN, DO. DO.PIN-678 551 5. DHANALAKSHMI, D/O.RADHAKRISHNAN, DO. DO.PIN- 678 551 R1 BY ADV. SRI.P.R.VENKETESH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts K.T.SANKARAN, J. ------------------------------ O.P.(C)No.627 OF 2011 ------------------------------ Dated this the 28 th day of February, 2011 JUDGMENT The petitioner is judgment debtor No.3 in O.S.No.516 of 1993 on the file of the Court of the Subordinate Judge of Palakkad. The trial court dismissed the suit. On appeal as A.S.No.69 of 2000, District Court, Palakkad, the suit was decreed, as per the judgment and decree dated 26 th November, 2003. Though RSA 535 of 2004 was filed, that Second Appeal was dismissed. 2. The decree holder in O.S.No.516 of 1993 filed E.P.No.266 of 2010. Notice was ordered to the respondents. The date of appearance before the Executing Court was on 2.2.2011. It is stated that the petitioner herein entered appearance on 2.2.2011 and sought for time to file counter. The court below passed an order dated 2.2.2011 for delivery of the property. In this Original Petition, the petitioner challenges the order for O.P.(C)No.627 OF 2011 2 delivery passed by the court below on 2.2.2011. 3. It is stated that the petitioner was a minor defendant in O.S.No.516 of 1993. Contending that his guardian did not properly prosecute the suit, the petitioner filed O.S.No.177 of 2005 on the file of the Sub Court, Palakkad. The suit was dismissed as per the judgment and decree dated 27.7.2010. The petitioner filed A.S.No.280 of 2010 before the District Court, Palakkad and that appeal is pending. It is submitted by the learned counsel for the petitioner that the petitioner could not bring all these facts to the notice of the Executing Court and no opportunity was granted to the petitioner to file objections in E.P.No.266 of 2010. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. There is no dispute that the first posting of the Execution Petition was on 2.2.2011. O.P.(C)No.627 OF 2011 3 The petitioner, judgment debtor No.3, entered appearance on 2.2.2011 and sought time to file objections. The court below should have granted a short time to file objections. Instead, the court ordered delivery. I am of the view that the court below was not correct in ordering delivery without granting an opportunity to the petitioner to file objections. Accordingly, the order dated 2.2.2011 ordering delivery is set aside. The petitioner shall file objections in E.P.No.266 of 2010 on or before 15.3.2011. The Executing Court shall pass appropriate orders after hearing both sides. The Executing Court shall pass orders in the Execution Petition before closure of the courts for summer holidays. K.T.SANKARAN, JUDGE. cms