IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 WP(C).No. 22802 of 2007(M) -------------------------- AGAINST THE ORDER DATED 23/06/2007 IN EP. 302 /2006 IN OS.184/1996 OF MUNSIFF COURT, PARAVUR .................... PETITIONER: ------------ MRS.VASANTHA KUMARI, W/O.SHANMUGHAN, AGED 50 YEARS, RESIDING AT ARAMIPARAMBIL, MUNAMBAM KARA, KUZHIPPILLY VILLAGE, KOCHI TALUK. BY ADV. SRI.SREELAL WARRIER RESPONDENTS: ------------- 1. THANKAPPAN, S/O.AYYAPPAN KUTTY, KAITHAKATTU VEETTIL, MUNAMBAM KARA, KUZHIPPILLY VILLAGE, KOCHI TALUK. 2. PAULOSE, KALANKUZHIYIL VEETIL, MUNAMBAM KARA, KUZHIPPILLY VILLAGE, KOCHI TALUK. 3. PRABHAKARAN, S/O.KRISHNAN, POLAKULATHU VEETTIL, MUNAMBAM KARA, KUZHIPPILLY VILLAGE, KOCHI TALUK. 4. KOCHUTHRESIA, W/O.LATE OUSEPH, OLATTUPURATHU, MUNAMBAM KARA, KUZHIPPILLY VILLAGE, KOCHI TALUK. 5. JESSY, D/O.LATE OUSEPH, OLATTUPURATHU, MUNAMBAM KARA, KUZHIPPILLY VILLAGE, KOCHI TALUK. 6. TOMY, S/O.LATE OUSEPH, OLATTUPURATHU, MUNAMBAM KARA, KUZHIPPILLY VILLAGE, KOCHI TALUK. (...2) : 2: 7. BINDU, D/O.LATE OUSEPH, OLATTUPURATHU, MUNAMBAM KARA, KUZHIPPILLY VILLAGE, KOCHI TALUK. 8. JOSEPH, D/O.LATE VARUTHUTTY, OLATTUPURATHU, MUNAMBAM KARA, KUZHIPPILLY VILLAGE, KOCHI TALUK. (FATHER’S NAME OF 8TH RESPONDENT CORRECTED AS ‘CHEEKUTTY’ AS PER THE ORDER DT. IA 2979/08) 9. SUB INSPECTOR OF POLICE, MUNAMBAM POLICE STATION, MUNAMBAM. BY SR. ADV. SRI. N. SUBRAMANIAN GOVERNMENT PLEADER ADV. SMT. BINDU. R. FOR R9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioner’s Exhibits:- Exhibit-P1:- True copy of Decree dated 30.6.2000 in O.S. No.184 of 1996 of Munsiff’s Court, N. Parur Exhibit-P2:- True copy of Execution Petition in E.P. No.302 of 2006 in O.S 184 of 1996 of the Munsiff’s Court, N. Parur Exhibit-P3:- True copy of Execution application in E.P. No.302 of 2006 in O.S 184 of 1996 of the Munsiff’s Court, N. Parur Exhibit-P4:- True copy of order in E.P. No.302 of 2006 in O.S. No.184 of 1996 of the Munsiff’s Court, N. Parur. ------ M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) .No. 22802 of 2007 ------------------------------------------ DATED THIS THE 5TH DAY OF JUNE, 2008 JUDGMENT Petitioner is the decree holder in O.S. 184 of 1996 on the file of Munsiff Court, N. Parur. EP 302 of 2006 was filed for execution of the decree. The Execution Petition was filed under Rule 32 of Order XXI of Code of Civil Procedure contending that inspite of the decree for injunction, respondents are causing hindrance to construction of a boundary wall to the decree schedule property. Ext.P3 application was filed for deputing an Ameen for the purpose of executing the decree by securing construction of boundary wall. The execution petition along with the said application was dismissed on 23.6.2007. It was dismissed by the following order:- “ Decree Holder not present. Decree holder called absent. Execution petition dismissed. No costs”. This petition is filed to quash Ext.P4 order contending that Ext.P4 order itself shows that the counsel appearing for the decree holder was present when the execution petition WPC 22802/07 2 was taken up by the court and as there was no direction for the decree holder to be present in court it cannot be said that decree holder was not present as he was present through his counsel. It is therefore argued that Ext.P4 order is illegal and is to be set aside. Though notice was served on the respondents they did not appear. When the petition was heard, doubt was expressed whether, in view of the provisions of Rule 106 of Order XXI of Code of Civil Procedure, remedy is to file a petition as provided therein or to approach this court under Article 227 of Constitution of India. Learned senior counsel Advocate Shri. N. Subrahmanian was appointed as an amicus curae. 2. The learned counsel appearing for petitioner and learned senior counsel were heard. 3. Though Ext.P4 order shows that execution petition was dismissed as decree holder was not present, the order itself shows that counsel appearing for the decree holder was present on 23.6.2007 when the execution petition was dismissed for default. Though Rule 105 (2) of Order XXI enables the court to dismiss an application filed under any of the provisions of the said order, on the failure of the applicant to appear when the case was called, when the counsel appearing for decree holder WPC 22802/07 3 was present, as is clear from Ext.P4 order, it cannot be said that decree holder was not present when the execution petition was dismissed. There is no necessity for presence of the decree holder for execution of the decree as provided under sub-rule 5 of Rule 32 of Order XXI of Code of Civil Procedure. In such circumstances, the execution petition could not have been dismissed as provided under Rule 105(2) of Order XXI, and therefore it cannot be said that remedy of the petitioner is to file a petition as provided under sub-rule 1 of Rule 106 of Order XXI of Code of Civil Procedure. 4. As is clear from Ext.P4 order, execution petition was dismissed illegally holding that decree holder was not present when the decree holder was present through the counsel. Therefore, Ext.P4 order is quashed. EP 302 of 2006 on the file of Munsiff Court, North Parur is restored. The execution court is directed to proceed with the execution petition within one month from the date of receipt of a copy of this judgment. M. SASIDHARAN NAMBIAR, JUDGE Okb/-