IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 CRP.No. 589 of 2008() --------------------- AGAINST THE ORDER DATED 31/05/2008 IN EP.341/1978 IN OS.340/1996 of MUNSIFF COURT, MANJERI .................... REVN. PETITIONER: PETITIONER --------------------- THOMAS, S/O. KAVUMTHODIYIL MATHAI, CHOKKAD AMSOM, KALIKAVU DESOM. BY ADV. SRI.JAWAHAR JOSE RESPONDENTS: RESPONDENTS ------------------------ 1. P.V. NARAYANAN, S/O. VENKITA SUBRAMANIYA IYER. 2. BROTHER SESHAN. 3. OORIYAPADIKKAL NYNAN'S SON UMMAN. 4. NEELAPPARAMBIL JOSEPH. 5. VATTAKKATTIL KUTTAN. 6. KAVUMTHODIYIL MATHAI'S CHILDREN: CHERIYACHAN. 7. KUTTPPENNU @ ROSAMMA 8. MERI. 9. KUNJOO @ MATHAI 10. DECEASED MATHAI'S WIFE ROSA 11. PALENKARA ROMAN CATHOLIC PALLI VICARI. 12. DECEASED ANANDAN VELLAN'S CHILDREN: KOCHU VELLAN. 13. BROTHER KOLLAN @ SOMAN CRP.No.589 of 2008 : 2 : 14. KARINKANNANN KOLLAN'S SON: CHATHAN. 15. DECEASED BHOOKUTH VELLAN'S SON KOLLAN (RESPONDENTS 1ST & 2ND ARE RESIDING PALLIPPURAM VILLAGE,PALAKKAD TALUK, 11TH RESPONDENT AT PALENKARA AMSOM,DESOM, NILAMBUR TALUK,RESPONDENTS 3 TO 10 AND 12 TO 15 ARE RESIDING AT AMARAMBALAM AMSOM AND DESOM IN NILAMBUR TALUK. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.589 of 2008 ------------------------------- Dated this the 31st July, 2008. J U D G M E N T Petitioner is the fourth respondent in E.P.No.341 of 1978, on the file of Munsiff Court, Manjeri. Execution petition was filed by the first respondent for execution of the decree in O.S.No.340 of 1966. Execution petition was originally filed, after the decree was passed by the trial court. But execution petition was got stayed by the judgment debtors by filing A.S.No.26 of 1982. Subsequently, first appeal was dismissed and Second Appeal No.19 of 1987 was filed. That second appeal was also dismissed on 12.11.1987. Meanwhile, execution petition which was got stayed was dismissed by the court for default on 27.10.1998. Petitioner filed E.A.No.200 of 2008, after the execution petition was suo motu restored to file by learned Munsiff as per order dated 2.11.2007, under Section 47 of Code of Civil Procedure. Learned Munsiff as per order dated 31.5.2008 dismissed the application finding that petitioner was set ex parte in the execution proceedings on 16.10.1978, and he did not file a petition to set aside that ex parte order, and, therefore, petition is not maintainable. This revision petition is filed challenging the said order. CRP.No.589 of 2008 2 2. Learned senior counsel appearing for the petitioner was heard. 3. Learned Senior counsel argued that execution petition which was dismissed on 27.10.1998 was restored suo motu by the court on 2.11.2007 without notice to the petitioner, and, therefore, executing court was not justified in dismissing E.A.No.200 of 2008, for the reason that petitioner did not file an application to set aside ex parte order. It was pointed out that petitioner did not get any notice before restoration of the execution petition, which was dismissed for default, and when the execution petition stood dismissed, it is not for the petitioner to get the ex parte order set aside, and learned Munsiff should not have dismissed the application without considering the merit. 4. In view of the order to be passed in this petition, I do not find it necessary to issue notice to the decree holders so as to protract the matter further. Therefore, no notice to the respondents is issued. 5. As is clear from the impugned order, learned Munsiff did not consider the merit of E.A.No.200 of 2008. It was CRP.No.589 of 2008 3 dismissed solely for the reason that petitioner was set ex parte earlier on 16.10.1978. Even though petitioner was set ex parte on 16.10.1978, as no notice was served on the petitioner, when it was subsequently suo motu restored by the court, learned Munsiff should not have dismissed the application for the reason that petitioner did not file an application to set aside ex parte order. Therefore, impugned order is quashed. Executing Court is directed to pass appropriate orders in E.A.No.200 of 2008 in accordance with law. Learned Munsiff to dispose E.A.No.200/2008, as expeditiously as possible, at any rate, within three weeks from the date of receipt of a copy of this judgment. Revision petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.