IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 WP(C).No. 34453 of 2009(O) -------------------------------------- (AGAINST THE ORDER DTD. 31/10/2008 IN E.P.NO.30/2006 IN O.S. NO.10/2005 OF THE SUB COURT, ALAPPUZHA) ........... PETITIONER: ------------------- T.A.ANTONY, AGED 77 YEARS, S/O. ABRAHAM, SUTHIKKATTU VEEDU,VATTAYAL WARD, ALAPPUZHA. BY ADVS. MR. K.S.HARIHARAPUTHRAN, MR. M.D. SASIKUMAR, MR. GEORGE MATHEW. RESPONDENT: ---------------------- P.G.VARGHESE, PANJICKAL VEEDU, SEA VIEW WARD, BAZAR P.O. ALAPPUZHA. BY ADV. MR.B.PRAMOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34453/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE DECREE DTD. 30/11/2005. EXT.P.2: COPY OF THE ORDER DTD. 07/01/2008. EXT.P.3: COPY OF THE JUDGMENT DTD. 22/10/2008 IN W.P.(C).NO.25147/2008. EXT.P.4: COPY OF THE ORDER DTD. 31/10/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 34453 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2010. JUDGMENT Aggrieved by Ext.P4 order, the petitioner has come up in this proceedings under Article 227 of the Constitution of India. 2. Petitioner is the decree holder in O.S.10 of 2005 on the file of the Additional sub Court, Alappuzha and a sum of Rs.2,98,089/- is due to him. He took out execution. On a later occasion, his execution petition was dismissed for default. It was restored by this court by Ext.P3 judgment. It appears that subsequently E.P. was posted to 28.2.2006 and subsequently on 31.10.2006. On that day, from the impugned order, it is seen that the decree holder was present so also his counsel. The judgment debtor and the counsel were absent. Then noting that no schedule had been filed, E.P. was dismissed. WPC. 34453/2009. 2 3. Learned counsel appearing for the petitioner points out that the property, which was intended to be sold initially has been alienated and that property is not available and therefore he has not filed a schedule. It was without hearing him the E.P. was dismissed. 4. The order does not show, except saying that no schedule is filed, any other reason for dismissing the E.P. It is to be noticed that the decree holder and his counsel were present. No opportunity was given to them to take further steps. In the above circumstances, it is felt that the order is unsustainable. In the result, this petition is allowed, the impugned order dismissing the E.P. is set aside and the E.P. is restored to file. The parties shall appear before the court below on 17.3.2010. P. BHAVADASAN, JUDGE sb.