IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 OP(C).No. 3315 of 2011(O) -------------------------------------- A.S.NO.89/2002 OF SUB COURT, VATAKARA -------------------- PETITIONERS/RESPONDENTS IN APPEAL --------------------------------------------------------------- 1. ABDUL KAREEM, S/O.ABDU RAHIMAN, AGED 54 YEARS, TRADER, RESIDING AT PALERI HOUSE, KANNUMAKKARA AMSOM, NELLACHERI DESOM, KOZHIKODE. 2. SUHARA, W/O.ABDUL KAREEM, AGED 48 YEARS, RESIDING AT PALERI HOUSE, KANNUMAKKARA AMSOM, NELLACHERI DESOM, KOZHIKODE. BY ADV. SRI.K.M.FIROZ SRI.SHAJNA.M RESPONDENT(S): APPELLANT IN APPEAL -------------------------------------------------------------- V.ANIL KUMAR, S/O.VALAPPIL CHATHUKUTTY, AGED 42 YEARS, KANNANKARA AMSOM AND CHELANNUR DESOM, KOZHIKODE, NOW R/AT KASABA AMSOM & DESOM KOZHIKODE TALUK & NOW HAVING HIS PLACE OF BUSINESS AS CHAIRMAN & MANAGING TRUSTEE, SREE ANJANEYA MEDICAL TRUST, KANCHAS COMPLEX, OPP.INDOOR STADIUM, CALICUT -PIN-673 004. BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.3315/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P-1 A TRUE COPY OF THE DECREE DATED 18.12.2002 IN O.S. NO.141 OF 2001 PASSED BY MUNSIFF COURT, VATAKARA. EXT.P-2 A TRUE COPY OF EXECUTION PETITION NO.322 OF 2007 DATED 10.8.2007 IN O.S.NO.141 OF 2001 BEFORE MUNSIFF COURT, KOZHIKODE. EXT.P-3 A TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO. 1066 OF 2010 IN A.S.NO.89 OF 2002 ON THE FILES OF SUB COURT, VATAKARA. EXT.P-4 A TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF I.A.NO. 1067 OF 2010 IN A.S.NO.89 OF 2002 ON THE FILES OF SUB COURT, VATAKARA. EXT.P-5 A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 12.11.2010 IN I.A.NO.1066 OF 2010 IN A.S.NO.89 OF 2002 ON THE FILES OF SUB COURT, VATAKARA. EXT.P-6 A TRUE COPY OF THE SAID COUNTER AFFIDAVIT DATED 12.11.2010 IN I.A.NO.1067 OF 2010 IN A.S.NO.89 OF 2002 ON THE FILES OF SUB COURT, VATAKARA. EXT.P-7 A TRUE COPY OF THE ORDER IN I.A.NO.1066 OF 2010 IN A.S. NO.89 OF 2002 ON THE FILES OF SUB COURT, VATAKARA. EXT.P-8 A TRUE COPY OF THE ORDER IN I.A.NO.1067 OF 2010 IN A.S. NO.89 OF 2002 ON THE FILES OF SUB COURT, VATAKARA. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3315 of 2011 ==================================== Dated this the 14th day of November, 2011 J U D G M E N T Respondent though served, remains absent. 2. Petitioners are respondents in A.S. No.89 of 2002 of the court of learned Sub Judge, Vadakara. They obtained a decree for eviction of respondent and recovery of compensation. Petitioners put the decree in execution. In the meantime respondent challenged the judgment and decree in A.S. No.89 of 2002. That appeal was dismissed for default on 13.07.2005. Petitioners continued with execution of the decree. In the course of execution respondent filed Ext.P4, application to readmit the appeal dismissed for default on 13.07.2005 and Ext.P3, application to condone the delay of sixty months and 45 days in filing the application. Those applications were allowed by the learned Sub Judge as per Exts.P7 and P8, orders which are under challenge. 3. Learned counsel for petitioners submitted that it is without referring to the facts of the case and the objection of petitioners (Ext.P5) that learned Sub Judge has passed non- speaking orders (Exts.P7 and P8). O.P(C) No.3315 of 2011 -: 2 :- 4. According to the petitioners the decree was passed by the learned Sub Judge directing respondent to vacate the shop room and pay licence fee of R.46,000/- with interest at the rate of 6% from 11.07.2002 till realization and compensation. It is submitted that respondent vacated the shop rooms and petitioners launched execution for recovery of the amount as E.P. No.322 of 2007. Respondent resisted the execution petition by his counter dated 22.05.2008 stating that it is not maintainable. Executing court found that execution petition is maintainable. Respondent filed E.A. No.530 of 2008 seeking permission to pay the amount in installments. That was granted by order dated 04.02.2009 and respondent was allowed to pay the amount in installments at the rate of Rs.15,000/- per month. Petitioner challenged that order in C.R.P. No.326 of 2009 in this Court on the ground that it was without consent of petitioners that the said order was passed. Civil Revision was allowed after hearing respondent and the matter was remitted to the executing court with observation that installment facility could be granted only after petitioners consented. Parties appeared before leaned Sub Judge on 22.09.2009. Respondent filed E.A. No.41 of 2010 to record full satisfaction of the decree. That was dismissed against O.P(C) No.3315 of 2011 -: 3 :- which respondent filed W.P(C) No.26904 of 2009. That Writ Petition was dismissed on 30.08.2010. It is while so, that on 15.01.2010 respondent filed Exts.P3 and P4, applications to readmit the appeal dismissed for default on 13.07.2005 and condone the delay of 60 months and 45 days. It is on the said applications learned Sub Judge, passed Exts.P7 and P8 orders. 5. In Ext.P7, order condoning the delay learned Sub Judge has stated “I am satisfied that petitioner has made out sufficient grounds to allow the petition on terms. Hence the petition is allowed on payment of cost of Rs.3,000/- to the respondent on or before 10.12.2010”. It is seen that learned Sub Judge has not referred to the contentions raised by petitioners and decided whether there was sufficient cause made out by the respondent to condone the delay. So far as Ext.P8, order readmitting the appeal is concerned learned Sub Judge has stated, “I am satisfied that petitioner has made out sufficient grounds to allow the petition. In the result the petition is allowed and appeal is posted on to 18.12.2010”. 6. Learned Sub Judge has not gone to the contentions raised by petitioners and considered whether there was sufficient cause shown by the respondent for his absence when O.P(C) No.3315 of 2011 -: 4 :- the appeal was dismissed for default on 13.07.2005. I am inclined to think that learned Sub Judge has to look into the matter afresh and decide the matter after considering the objection of petitioners as well. I make it clear that I have not given any indication as to the manner in which Exts.P3 and P4, applications are to be disposed of. Resultantly, Original Petition is allowed. Exhibits P7 and P8, orders are set aside and Exts.P3 and P4, applications are remitted to the learned Sub Judge for fresh decision on merit after hearing both sides. THOMAS P. JOSEPH, JUDGE. vsv