IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 WP(C).No. 2156 of 2009(F) ------------------------------------------ EA.184/2008 IN EP.229/92 IN OS.767/1989 of PRL.SUB COURT, TRIVANDRUM .................... PETITIONER/PETITIONER/CLAIM PETITIONER: SAROJINI, W/O. RAGHAVAN, CHANDRA BHAVAN, PERINGAMMALA, KALLIYOOR P.O., VENGANOOR VILLAGE. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS/RESPONDENT-DH/JD: 1. R.MADHU, BLACKSTONE COTTAGE, KARAMANA, THIRUVANANTHAPURAM. 2. R.RATHEESAN, CHANDRA BHAVAN, PERINGAMALA, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.2156 of 2009 F -------------------------- JUDGMENT Petitioner is the claim petitioner in E.A.No. 184/08 in E.P.No.229/92 in O.S.No.767/89 on the file of the Principal Sub Court, Thiruvananthapuram. The claim petition filed by her stood posted for filing objection by the first respondent/decree holder to 4.10.2008. On that day, the respondent/ decree holder filed objection. Petitioner was absent and however, there was no representation also on her behalf. Hence, for the reason that no evidence is adduced, the court below dismissed E.A. No.184/08, vide Exhibit P4 order. It is the said order that is assailed in this writ petition. 2. It is vehemently contended before me by the learned counsel for the petitioner that when E.A. No.184/08 stood posted for filing objection to 4.10.2008 and the respondent/decree holder filed objection on that day, it was only proper, in the usual course of procedure, to adjourn the matter WPC 2156/09 2 for enquiry and that without granting any such adjournment, the court below was not justified in dismissing E.A.No.184/08 for the reason that no evidence is adduced. The contention, no doubt, is sound. 3. Exhibit P3 is the objection filed by the respondent/decree holder to E.A.No.184/08. That is dated 3.10.2008. On 4.10.2008 was the posting of the case on the execution side. When it was represented that objection is filed, the court should have posted E.A.No.184/08 for enquiry or for evidence, as, certainly, adducing of evidence on that particular day could not have been in contemplation of either of the parties or of the court. But, the court below dismissed E.A.No.184/08 stating that no evidence is adduced. The dismissal, in the above fashion, is unjust, illegal and unwarranted. 4. Hence, I set aside Exhibit P4 order assailed in this writ petition and remit the case back to the court below for consideration afresh after WPC 2156/09 3 affording opportunity to the petitioner and the respondents to adduce evidence that they want to adduce in the matter. As this writ petition is being disposed of without issuing notice to the respondents, petitioner is directed to serve a copy of this judgment on the counsel for the respondent/ decree holder and also produce a copy of this judgment before the execution court positively within ten days from today. He shall also produce memo before the execution court reporting service of copy of this judgment on the counsel for the respondent/decree holder appearing in the court below. Thereupon, the court below shall post E.A.No.184/08 in E.P.No.229/92 in O.S.No.767/89 for evidence and dispose of the matter according to law. This writ petition is, thus, allowed. Issue copy of this judgment to the counsel for the petitioner urgently. 21st January, 2009 (K.P.Balachandran, Judge) tkv