IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 CRP.No. 287 of 2009(A) --------------------------------- OS.NO.796/2001 OF MUNSIFF'S COURT,ALAPPUZHA. .................... REVN. PETITIONERS/ JUDGMENT DEBTORS 1 & 2/ DEFENDANTS 1 & 2: ------------------------------------------------------------------------------------------------------ 1. SUSEELA VADHYAR, D/O.YAMUNA BAI, THEKKENADAYIL PUTHENMADATHIL, A.N.PURAM, THIRUVAMPADY, ALAPPUZHA. 2. RETHNAMMA, D/O.SUSEELA VADHAYAR, RESIDING AT DO. DO. BY ADV. MR.T.R.RAJAN. RESPONDENTS/DECREE HOLDERS & JUDGMENT DEBTORS 3 TO 5/ PLAINTIFFS AND DEFENDANTS 3 TO 5: -------------------------------------------------------------------------------------------------- 1. JAYA SREE JEEVAN KUMAR, W/O.JEEVAN KUMAR, REVATHY, PALACE WARD, MULLACKAL, ALAPPUZHA. 2. GUNA VADYAR, S/O.LATE ANANTHA VADYAR, KAMPIYIL, MANNANCHERRY P.O., ALAPPUZHA, (FROM PUTHENMADATHIL, A.N.PURAM.) 3. BALAKRISHNA BHATT, S/O.SUSEELA VADHYAR, THEKKE NADAYIL, PUTHENMADATHIL, A.N.PURAM, THIRUVAMPADY, ALAPPUZHA. 4. ANANTHA BHATT, S/O.SUSEELA VADHYAR, DO. DO. 5. MANJULA, D/O.SUSEELA VADYAR, DO. DO. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.287 of 2009 - A --------------------------------- Dated this the 5th day of June, 2009 O R D E R This revision is filed by the judgment debtors in E.P.No.151/2001 in O.S.No.796/2001 pending before the Munsiff Court, Alappuzha. An ex-parte decree for mandatory injunction was passed in the above suit. The defendants, petitioners in the writ petition, preferred an appeal challenging the decree on its merits before the appellate court, and it was dismissed. However, in the judgment passed by the appellate court the right to proceed with the application already moved under Order IX Rule 9 CPC by the petitioner was reserved and that reservation was also incorporated in the decree drafted in the appeal, is the case of the petitioners. Admittedly, a second appeal was also preferred against the decision of the first appellate court and that too ended in dismissal. The application moved by the petitioner for setting aside the ex-parte decree under Order IX Rule 9 is pending for enquiry and meanwhile, the decree holders initiated steps for executing the decree. Before the execution court petitioners filed objections. Stay of the proceedings till disposal C.R.P.No.287 of 2009 - A 2 of their application for setting aside the ex-parte decree was also canvassed. The learned Munsiff overruled the objections and directed execution of decree under the order impugned in the revision. 2. I heard the counsel for the petitioner. 3. Having regard to the submissions made and taking note of the facts and circumstances involved, I find there is no impropriety or illegality in the order passed by the learned Munsiff holding that the reservation made in the judgment of the appellate court tantamounts to the statutory provisions under Order IX Rule 9 CPC and as such it cannot be considered as a bar to continue with the execution proceedings of the ex-parte decree. Explanation to Order IX Rule 13 CPC incorporated under the amendment in 1976 makes it abundantly clear that when an appeal is preferred against an ex-parte decree on merits is dismissed on any ground other than withdrawal, it would bar a petition under Order IX Rule 13 CPC for setting aside the ex- C.R.P.No.287 of 2009 - A 3 parte decree. When there is such a statutory bar the reservation in the appellate court judgment has the effect that the defendants can continue with the application moved, but it will not confer any better right on the judgment debtors to canvass a proposition that despite the dismissal of the appeal challenging the decree on merits they have a right to get relief under Order IX Rule 13 CPC . The writ petition is devoid of any merit and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-