IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 OP(C).No. 80 of 2010(O) ---------------------------------- AGAINST THE ORDER IN EP 45/1999 IN OS.NO. 750/1995 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER --------------------- M/S.SURAJ METAL INDUSTRIES, PLOT NO.99, 8TH MAIN, III PHASE, PUNYA INDUSTRIAL AREA, BANGALORE-560 058, REPRESENTED BY THE PARTNER..... BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): -------------------------- 1. THOMAS C.ARAKKAL, S/O.CLEETUS ARAKKAL, ARAKKAL AGENCIES, POST BOX NO.2606, ALLEPPEY-7. * 2. M/S.SURAJ METAL INDUSTRIES, BRANCH OFFICE, XLI/3273, A2, GOLDEN CASTLE, OLD RAILWAY STATION ROAD, COMPARA JUNCTION, ERNAKULAM, KOCHI-18, REPRESENTED BY THE BRANCH MANAGER.................. * RESPONDENT NO.2 IS DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF PETITIONER AS PER ORDER DATED 4/2/2011 IN OP(C) NO.80/2010. R1 BY ADV. SRI.M.NARENDRA KUMAR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.80/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGEMENT DATED 26/2/1998, IN O.S.NO.750/1995,SUB COURT ERNAKULAM. P2 COPY OF THE AFFIDAVIT AND PETITION DATED 28/11/2000, FILED BY THE DEFENDANTS IN O.S.NO.750/1995, SUB COURT, ERNAKULAM. P3 COPY OF THE ORDER DATED 21/11/2000 IN E.P.NO.45/99 IN O.S.NO.750/95, SUB COURT, ERNAKULAM. P4 COPY OF THE ORDER DATED 21/11/2001 IN C.R.P.NO.582/2001 P5 COPY OF THE ORDER DATED 31/7/2008,IN E.P.NO.45/1999, IN O.S.NO.750/1995, SUB COURT , ERNAKULAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.80 of 2010 -------------------------------------- Dated this the 28th day of July, 2011. JUDGMENT First defendant/judgment debtor in E.P.No.45 of 1999 in O.S.No.750 of 1995 of the court of learned Principal Sub Judge, Ernakulam is the petitioner before me challenging Ext.P5, order passed by the executing court fixing the commission allegedly payable by petitioner to the respondent. Respondent filed the suit for recovery of money from petitioner and Ext.P1, compromise decree was passed. Respondent filed E.P.No.45 of 1999 for recovery of `5,79,835/-. Petitioner contended that only clause-2 of the compromise decree is executable and other clauses are not executable without settling accounts between parties. Executing court passed Ext.P3, order holding that clause-2 of the compromise decree alone is executable. First respondent/decree holder challenged that order in C.R.P.No.582 of 2001. This Court disposed of the civil revision by Ext.P4, order on 21.11.2001 setting aside Ext.P3, order and directing the executing court to consider the matter afresh after hearing both sides on the executability of clauses-1 and 3 as well. It is thereafter that Ext.P5, order was passed by executing court on 31.07.2008 holding that clause-1 of the compromise decree is executable. Accordingly it was found that respondent is entitled to get `5,79,835/- (as prayed for in execution petition). The decree certificate was issued for execution to the court of Civil Judge, Bangalore. OP(C) No.80/2010 2 2. Learned counsel for petitioner contends that petitioner had no notice about execution proceeding after Ext.P3, order was set aside by this Court in C.R.P.No.582 of 2001 and the matter was remitted to the executing court for fresh decision. It is pointed out by learned counsel that after remand respondent could have given notice of the execution petition to the counsel for petitioner in the executing court but that was not done. Instead, it is stated that a paper publication was made in “the Hindu” on 12.01.2006. Petitioner had no notice about the paper publication. Petitioner learnt about Ext.P5, order passed by the executing court only when notice on execution petition was received from the court of learned Civil Judge, Bangalore. Thereon petitioner has filed this petition challenging Ext.P5, order. It is contended by learned counsel that at any rate, Ext.P5, order cannot be sustained in that the executing court has not considered the relevant aspects of the matter and merely for the reason of absence of petitioner, has passed an exparte order allowing respondent to realise `5,79,835/-. That, according to the petitioner, cannot be sustained. 3. Learned counsel for respondent contends that the proper course open to the petitioner was to request the executing court to set aside the exparte order against it which itself is barred by limitation. It is pointed out that in view of Rule 106(3) of Order 21 of the Code of Civil Procedure (for short, “the Code”) an application to set aside the exparte order should have been made within thirty days from the date of order or, where in the case of an exparte order the notice was not duly served, within thirty days from the date when petitioner had OP(C) No.80/2010 3 knowledge about impugned order. Learned counsel points out that forgetting whatever procedure was taken before filing of Original Petition, this petition is filed on 27.09.2010 and atleast, knowledge of the impugned order must be attributed to the petitioner on 27.09.2010 and then also, if the period of thirty days referred to in Rule 106(3) of Order 21 of the Code is computed from 27.09.2010, the time within which petitioner could have requested the executing court to set aside the exparte order against it has expired. In that situation petitioner may not be allowed to challenge Ext.P5, order. It is further contended that so far as Ext.P5, order is concerned, there is no legal infirmity since there was no contra evidence before the executing court and the only evidence available was Exts.A1 to A5 and the proof affidavit of the respondent based on which the impugned order was passed. 4. Since this Original Petition is not in challenge of the order setting petitioner exparte in the execution proceeding or a refusal to set aside that order, it is not necessary for me to go into the contention raised by learned counsel on both sides as to the correctness of order setting petitioner exparte and the possibility of that order set aside as per Rule 106(3) of Order 21 of the Code. 5. This Court is concerned only with the correctness of Ext.P5, order. Assuming that petitioner was exparte in the execution proceeding, still it can challenge correctness of Ext.P5, order. OP(C) No.80/2010 4 6. Reference has been made to clause-1 of compromise decree. As per that clause petitioner is liable to pay commission to the respondent within one month from the date of compromise decree. In otherwords, amount payable by petitioner to the respondent represents commission which petitioner is liable to pay to the respondent. It is true that before the executing court there was the proof affidavit of respondent and Exts.A1 and A5. It is seen from Ext.P5, order that the executing court has not applied its mind to Exts.A1 to A5 and the proof affidavit of respondent and merely fixed amount payable to the respondent as `5,79,835/-. That in my view is not the approach executing court should have made. It was necessary for the executing court to decide from Exts.A1 to A5 what exactly is the amount payable to the respondent and accordingly, fixed the amount if necessary, getting the assistance of an officer of the court familiar with accounting. It is relevant to note that in Ext.P5 executing court made an observation that “on perusal of the compromise decree and the evidence produced by the decree holder in the form of the proof affidavit and the documents produced which are marked as Ext.A1 to A5 it appears to this Court that the E.P. is executable and the judgment debtors are liable to pay a total sum of ` 5,79,835/ -.” I am inclined to think that liability of petitioner should not have been fixed because 'it appeared' so to the executing court. There must be a definite finding based on Exts.A1 to A5 as to what exactly is the amount payable to the respondent. That exercise is not done by the executing court. So much so, the order under challenge cannot be sustained and is liable to be set aside. OP(C) No.80/2010 5 Resultantly this Original Petition is allowed. Ext.P5, order is set aside. E.P.No.45 of 1999 in O.S.No.750 of 1995 is remitted to the executing court for fresh consideration of the evidence before it and pass orders as to the liability if any of petitioner to pay commission and if so, as to the amount thus payable. If found necessary, the executing court may obtain the assistance of an officer of the court familiar with accounting. Executing court is directed to expedite proceedings before it and pass appropriate orders having regard to the fact that the suit is of the year 1995, compromise decree was passed on 26.02.1998 and the execution petition itself was preferred in the year 1999. Respondent shall appear in the executing court on 18.08.2011. THOMAS P.JOSEPH, Judge. cks