IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 OP(C).No. 1038 of 2011(O) ------------------------- AGAINST THE ORDER IN EP 53/1997 IN OS.1085/1991 of PRL.SUB COURT,KOTTAYAM .................... PETITIONER: ---------------------- T.S.ZACHARIAS,AGED 74, S/O.SCARIA, THUDINPLACKAL HOUSE,VELLIAPALLY, PO PALA, KOTTAYAM DISTRICT. BY ADVS. SRI.G.SREEKUMAR (CHELUR), SRI.K.RAVI (PARIYARATH). RESPONDENT(S): ---------------------------- UNION BANK OF INDIA, KOKKAYAR BRANCH, REP.BY ITS BRANCH MANAGER, IDUKKI DISTRICT 685 602. BY ADV. SRI.A.S.P.KURUP, SC, UBI THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(C) NO.1038/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT IN O.S.NO.1085/91 DTD. 15/07/93 ON THE FILE OF THE ADDL.SUB COURT, KOTTAYAM. P2: COPY OF THE DECREE IN O.S.NO.1085/91 DTD. 15/07/93 ON THE FILE OF THE ADDL.SUB COURT, KOTTAYAM. P3: COPY OF E.P.NO.53/97 IN O.S.NO.1085/91 DTD. 19/02/97 ON THE FILE OF THE SUB COURT, KOTTAYAM. P4: COPY OF THE ORDER PASSED IN E.P.NO.53/97 IN O.S.NO.1085/91 DTD. 31/01/09 ON THE FILE OF THE SUB COURT, KOTTAYAM. P5: COPY OF THE E.A.NO.183/09 IN E.P.NO.53/97 DTD. 28/02/09 ON THE FILE OF THE SUB COURT,KOTTAYAM. P6: COPY OF THE OBJECTION FILED BY THE PETITIONER DTD. 19/05/2010 TO EXT.P5. P7: COPY OF THE ORDER PASSED IN E.A.NO.183/09 DTD. 30/11/2010ON THE FILE OF THE PRL.SUB COURT, KOTTAYAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss HARUN-UL-RASHID,J. ------------------------------- O.P.(C).NO. 1038 OF 2011 ------------------------------- DATED THIS THE 1ST DAY OF JULY, 2011 JUDGMENT Petitioner is the 2nd judgment debtor in E.P.No.53/1997 in O.S.No.1085/1991 on the file of the Principal Sub Court, Kottayam. A money decree was passed by the Additional Sub Court, Kottayam on 15/7/1993. The decree holder-bank filed an execution petition seeking to relise the decree amount by sale of the mortgaged property and by arrest and detention of the judgment debtors for the wilful non-payment of the decree amount. Ext.P3 is the copy of the execution petition. On 1/10/2006 the 3rd party/auction purchaser bid the property in court auction for a sum of `6,00,000/-. Ext.P4 is the order passed by the execution court on 31/1/2009 dismissing the E.P.No.53/1997. The execution court held that the decree holder has failed to prove that the respondents are getting sufficient income and they wilfully evaded from payment of the decree debt. On the basis of the said finding the -2- O.P.(C).No.1038/2011 execution court dismissed the execution petition. Subsequently, the decree holder filed Ext.P5 petition to review Ext.P4 order. Petitioner filed Ext.P6 objection. The execution court passed Ext.P7 order allowing the decree holder to proceed against judgment debtors 1 to 4, which is under challenge in the original petition. 2. None of the objections of the petitioner was considered and no reasons are stated in Ext.P7 order for allowing Ext.P5 petition. The order is cryptic. The order does not reflect the reasons for permitting the decree holder to proceed with the execution petition, which was dismissed by the court on 31/1/2009. In these circumstances, this Court is of the view that Ext.P5 petition shall be considered afresh, after considering the contentions of the decree holder and the 2nd judgment debtor, who is the petitioner herein. Therefore, Ext.P7 order is set aside. The court below shall consider Ext.P5 afresh and dispose of the same within a period of two months from the date of receipt of a copy of this judgment. -3- O.P.(C).No.1038/2011 The decree holder and the 2nd judgment debtor shall appear before the court below on 18/7/2011. Counsel shall inform the parties. Original Petition is disposed of as above. Sd/- HARUN-UL-RASHID, Judge. kcv.