IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 FAO.No. 289 of 2006() --------------------- AGAINST THE ORDER IN EA 108/06 IN EP 24/04 IN OS.146/1984 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT/PETITIONER/DECREE HOLDER: -------------------------------------------------------------- STATE BANK OF INDIA REPRESENTED BY ITS BRANCH MANAGER AND PRINCIPAL OFFICER, BROADWAY BRANCH, ERNAKULAM. BY ADV. SRI.N.MANI (VAIKOM) RESPONDENT(S): RESPONDENT/JUDGEMENT DEBTOR: ---------------------------------------------------------------------------- 1. GEORGE PHILIP S/O.PASTOR PHILIPOSE, MANAGING PARTNER, PHILOSON, FISHERIES, THOPPUMPADY, COCHIN- 682005, AND RESIDING AT 1/2, DC ROAD, COCHIN- 682007. 2. T.M.ABRAHAM, H.M.84, GIRI NAGAR, COCHIN- 682020. ADV. SRI.ALIAS M.CHERIAN FOR R1 SRI.N.V.RAMACHANDRAN FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 289 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2009. JUDGMENT Raman, J, Appellant, State Bank of India, filed a suit as O.S. 146 of 1984 before the Sub Court, Ernakulam for realisation of money due from the defendant. On a joint application filed by the parties during the pendency of the suit, a fishing boat, towards which the loan was availed, was entrusted to the first respondent as a receiver on certain conditions, which however, he did not comply with. Eventually a decree was passed in favour of the appellant and they sought to proceed with the execution by filing E.P. 588 of 1995. In that, E.A.1304 of 1997 was filed seeking production of the boat by the first respondent. That was allowed on 15.12.1998. Still the first respondent did not produce the boat. Later E.A.1181 of 2003 was filed for transferring the execution petition to Sub Court, Kochi, which was eventually transferred and re-numbered as E.P.24 of 2004 on the file of the Sub Court, Kochi. In that, F.A.O. 289/2006. 2 the first respondent filed objection stating that he has no means. However, for want of evidence E.P.24 of 2004 was dismissed. The appellant sought to restore the execution petition by filing E.A.108 of 2006, which was dismissed. Against which, the present appeal is filed. 2. The only point arising for consideration is regarding the legality or otherwise of the order impugned. 3. E.P. 24 of 2004 was dismissed for want of evidence to prove the means of the judgment debtor. But the restoration application was dismissed on 28.7.2006 saying that a fresh application could be moved by the decree holder and the dismissal will not prejudice the right of the appellant. The court did not however address the question as to whether a fresh E.P will be barred by that time. As a matter of fact the decree is of the year 1987 and the time for filing a fresh execution petition was already barred. If so, the court ought to have restored E.P.24 of 2004 to file. The court erred in not doing so. F.A.O. 289/2006. 3 In the result, we allow this appeal and restore E.P.24 of 2004 on the file of the Sub Court, Kochi to file. The parties will be given an opportunity to adduce evidence in respect of the respective contentions. Parties may appear before Sub Court, Kochi on 10th September, 2009. P.R. Raman, Judge P. Bhavadasan, Judge sb.