IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(C).No. 19554 of 2009(O) -------------------------- OS.252/2005 of MUN-MAGI COURT, SASTHAMCOTTA .................... PETITIONER(S): --------------- K.P.ANIL KUMAR, S/O.PARAMESWARAN PILLAI, AGED 38, KAVIL VEEDU, THURUTHIKKARA MURI, KUNNATHUR VILLAGE, SASTHAMCOTTA, KOLLAM DISTRICT. BY ADV. SRI.R.SURAJ KUMAR SRI.N.AJITH RESPONDENT(S): --------------- 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 68 YEARS, SANTHI BHAVANAM, THURUTHIKKARA MURI, KUNNATHUR VILLAGE, SASTHAMCOTTA, KOLLAM DISTRICT. ADV. SRI.P.GOPINATH FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.19554/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.S.NO.252 OF 2005, MUNSIFF MAGISTRATE, SASTHAMCOTTA DATED 22.9.2006. EXT.P2: COPY OF THE DECREE IN O.S.NO.252/2005, MUNSIFF MAGISTRATE, SASTHAMCOTTA. EXT.P3: COPY OF THE PETITION, E.P.NO.27 OF 2008 IN O.S.NO.252 OF 2005, MUNSIFF'S COURT, SASTHAMCOTTA. EXT.P4: COPY OF THE APPLICATION, E.A.NO.24/2008 IN E.P.NO.27/2008 IN O.S.252/2005. EXT.P5: COPY OF THE APPLICATION E.A.25/2008 IN E.P.27/2008 IN O.S.252/2005. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.19554 OF 2009 () ----------------------------------- Dated this the 6th day of October, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records relating to E.P.No.27 of 2008 in O.S.No.252 of 2005 on the file of the Munsiff Magistrate Court, Sasthamcotta. ii. to set aside Ext.P10 in exercise of the supervisory jurisdiction of this Honourable Court under Article 227 of the Constitution of India. iii. to pass an order allowing E.P.No.27 of 2008 in O.S.No.252 of 2005 on the file of the Munsiff Magistrate's Court, Sasthamcotta. 2. Petitioner is the decree holder in O.S.No.252 of 2005 on the file of the Munsiff Magistrate Court, Sasthamcotta. WPC.19554/09 2 The decree passed in the above suit was one for perpetual prohibitory injunction restraining the respondents/judgment debtors/defendants from initiating revenue recovery proceedings against the decree holder in respect of a loan alleged to have been availed from the 1st judgment debtor. Suit was decreed ex parte. It is the case of the petitioner/decree holder that after passing of the ex parte decree of injunction, violating that decree, steps were initiated under the Revenue Recovery Act alleging that he is a defaulter and certain sums are due from him as realisable as arrears on public revenue due on land. Petitioner thereupon moved and application under Order XXI Rule 32 of the Code of Civil Procedure against the judgment debtors for disobeying the decree of injunction. The judgment debtors appeared and filed objections. The learned Munsiff, after hearing both sides, dismissed the execution petition vide Ext.P10 order holding that the decree had been passed without jurisdiction, and, hence, it was a nullity. Propriety and correctness of Ext.P10 order is challenged in the writ petition by the decree holder invoking the supervisory jurisdiction vested with this WPC.19554/09 3 Court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the 1st and 2nd judgment debtors and also the learned Government Pleader. The learned counsel for the petitioner/decree holder submitted that the execution court had entered a finding that the decree is a nullity and was passed by the court without jurisdiction placing reliance on Section 72 of the Revenue Recovery Act. The execution court, it is submitted, has taken the view that there is an absolute bar under Section 72 of the Revenue Recovery Act, excluding the jurisdiction of the court to entertain any disputes relating to realisation of the dues under the provisions of the Revenue Recovery Act. The reasons given under Ext.P10 order to hold that the decree is a nullity, it is submitted, are not only incorrect but perverse, and, in fact, the execution court has examined the objections raised by the judgment debtors as if it was trying a suit on its merits. On the other hand, the learned counsel for the 1st and 2nd judgment debtors and also the learned Govt.Pleader appearing for the 3rd judgment debtor submitted that at the WPC.19554/09 4 instance of the 1st and 2nd judgment debtors, an application has been moved for setting aside the ex parte decree, and, it is pending consideration before the court. The revenue recovery proceedings, it is submitted, are initiated by the 3rd judgment debtor on requisition received from the authorities, who are competent to seek such proceedings under the Revenue Recovery Act as provided by that Act, as notified under that Act. Since the reopening of the ex parte decree to have a decision on merits is canvassed, and that an application moved thereof is pending consideration, the learned counsel for the 1st and 2nd judgment debtors and also the learned Govt.Pleader requested for keeping in abeyance further execution proceedings, in case the court finds that the order is not sustainable, till completion of the enquiry on the petition filed for setting aside the ex parte decree. 3. Perusing Ext.P10 order, I find there is much force in the submissions made by the learned counsel for the decree holder that the dismissal of the execution petition holding that the suit, in which the ex parte decree was passed, was barred WPC.19554/09 5 under Section 72 of the Revenue Recovery Act, cannot be sustained. Section 72 of the Revenue Recovery Act stipulates that a suit challenging a proceedings initiated under the Revenue Recovery Act by a defaulter is not entertainable except on the ground of fraud. The bar is applicable only in respect of a defaulter or any person claiming under the defaulter. It is the case of the decree holder that he was not a defaulter, and as such, not liable to be proceeded under the Revenue Recovery Act. Whatever be the merit of the contentions, after passing of an ex parte decree of injunction, and when proceedings are taken alleging that the decree so passed is violated, there is no scope for the execution court for having a roving enquiry whether the suit in which the ex parte decree was passed was barred or not under Section 72 of the Revenue Recovery Act. That was a matter to be considered in the trial, and not in execution of the decree passed in the suit. Another reason that persuaded the execution court to hold that the decree is a nullity is that the defendants were not aware of the decree passed in the suit. Needless to point out that after these defendants had entered appearance in the suit WPC.19554/09 6 and later an ex parte decree was passed in such suit, the plea so canvassed that they were unaware of the decree passed ex parte cannot be canvassed to challenge the executability of the decree. So, at any rate, Ext.P10 order passed by the execution court holding that the decree is a nullity is patently erroneous and unsustainable. Ext.P10 order is liable to be set aside, and I do so. 5. Having regard to the submissions made by the learned counsel for the 1st and 2nd judgment debtors and also the learned Govt.Pleader that a petition filed under Order IX Rule 13 of the CPC for setting aside the ex parte decree and restoring the suit to have a decision on merits is pending before the court it is only proper and appropriate to keep in abeyance further proceedings from the petition filed by the decree holder under Order XXI Rule 32 of the CPC till orders are passed on the application for setting aside the ex parte decree. The court below shall expedite the enquiry on the application moved for setting aside the ex parte decree, and after providing reasonable opportunity to both sides to lead WPC.19554/09 7 evidence in respect of their case complete such proceedings, at any rate, within a period of four months from the date of receipt of a copy of this judgment. The application moved by the petitioner for proceeding against the judgment debtors/defendants for disobeying the ex parte decree shall be taken up for consideration only after a decision is taken on the petition moved for ex parte decree, and subject to the orders passed thereof. Writ petition is disposed with the above observations. S.S.SATHEESACHANDRAN JUDGE prp