IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 21563 of 2008(P) -------------------------- OS.252/2005 of MUN-MAGI COURT, SASTHAMCOTTA .................... PETITIONER: ------------ K.P.ANIL KUMAR S/O. PARAMESWARAN POILLAI, AGED 38, KAVIL VEEDU THURUTHIKKARA MURI, KUNNATHUR VILLAGE, SASTHAMCOTTA, KOLLAM DISTRICT BY ADV. SRI.N.AJITH RESPONDENTS: ------------- 1. THE SECRETARY KERALA KHADI AND VILLAGE INDUSTRIES BOARD THIRUVANANTHAPURAM 2. THE PROJECT OFFICER KERALA KHADI AND VILLAGE INDUSTRIES BOARD KOLLAM. 3. THE DISTRICT COLLECTOR, KOLLAM 4. K.DEVAKI AMMA, AGED 67 YEARS, SANTHI BHAVANAM, THURUTHIKKARA MURI KUNNATHUR VILLAGE, SASTHAMCOTTA, KOLLAM DISTRICT BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 21563 OF 2008 ............................................ DATED THIS THE 24th DAY OF JULY, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India to quash Ext.P8 order passed in Ext.P6 application and also for a direction to the executing court to consider and pass orders in Ext.P5 and P7 applications. Petitioner is the plaintiff in O.S.252 of 2005 on the file of Munsiff-Magistrate Court, Sasthamcotta. Under Ext.P1 judgment dated 22.9.2006, respondents 1 to 3, the defendants 1 to 3 in the suit, were restrained by a permanent prohibitory injunction from proceeding against petitioner as stated in Ext.A1 notice dated 27.7.2005 issued by first respondent, till a decision is arrived at on his membership in Sooranadu Grama Vikasama Society. Ext.P5 execution petition was filed against respondents 1 and 2 to proceed against them for violation of Ext.P2 decree in that suit. Ext.P6 application was filed, contending that in spite of Ext.P1 judgment and Ext.P2 decree, Ext.P4 notice was issued for realisation of the amount from the petitioner. Ext.P7 petition was filed for stay of proceedings taken by respondents 1 to 3 for violation of the decree. Learned Munsiff dismissed Ext.P6 WP(C) 21563/2008 2 application under Ext.P8 order. 2. Learned counsel appearing for petitioner argued that Ext.P8 order is illegal as the contentions of petitioner in Ext.P6 application was not considered by the court at all. Learned counsel appearing for respondents 1 and 2 and learned Government Pleader submitted that Ext.P1 is an exparte decree and respondents 1 and 2 have taken steps to get the exparte decree set aside. 3. On hearing the learned counsel appearing for petitioner, respondents 1 and 2 and learned Government Pleader, and going through Ext.P8 order, it is absolutely clear that learned Munsiff did not consider Ext.P6 application on merits. Ext.P6 application, alleging that in violation of Ext.P2 decree, respondents 1 to 3 proceeded against petitioner for realisation of the amount, by issuing Ext.P4 notice and therefore action is to be taken against them, was disposed as follows:- “Already execution petition to execute the decree is filed and is pending disposal. Hence this petition has become infructuous and dismissed”. Learned Munsiff did not consider the allegation raised by WP(C) 21563/2008 3 petitioner with regard to issuance of Ext.P4 notice. But the allegation in Ext.P5 execution petition is also based on Ext.P4. In such circumstances, Ext.P8 order is quashed. Learned Munsiff is directed to dispose E.P.27 of 2008 and the applications filed by petitioner including Ext.P6 and P7 in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE lgk/-