IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 32731 of 2009(O) ---------------------------------- AGAINST THE ORDER DATED 14/10/2009 IN EA 415/2006 IN OS.268/1998 of PRL.SUB COURT,IRINJALAKUDA ........................................ PETITIONER(S): -------------------- AYISHUMMA, AGED 75 YEARS, W/O.THEKKE MAYILEKKARA MAMMU, PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK, (MENTALLY ILL, REPRESENTED BY RACEA), AGED 50, W/O.LATE SADIQUE ALI, PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.K.SANEESH KUMAR SRI.SOJO J.KALLIDUKIL RESPONDENT(S): --------------- 1. ABDUL KALAM AZAD, AGED 51 YEARS, S/O.THEKKE MAYILEKKARA MAMMU, THEKKUMMURIYIL, PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK. 2. VIDYARDHADAYINI SABHA, LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.32731 OF 2009 -------------------------------- Dated this the 26th day of November 2009 ---------------------------------------------------------- JUDGMENT Challenge raised in the writ petition is against the dismissal of a claim petition moved in an execution proceeding in O.S. No. 268 of 1998 on the file of the Principal Sub Court, Irinjalakkuda. The proceedings related to the execution of a decree passed in a suit for money. Towards realisation of the decree debt, an immovable property allegedly belonging to the judgment debtor was attached and steps proceeded for setting the proclamation for its publication and sale. A claim petition was moved by the mother of the judgment debtor as represented by a next friend contending that she is a mentally ill person and the documents purported to have been created by her in favour of the son had no legal sanctity as she was incompetent to execute such a deed. A preliminary enquiry on the competency of the next friend to represent the claim W.P.(C).No.32731 OF 2009 Page numbers petitioner as to the cause shown regarding her mental illness proceeded in which opportunity was extended by the court for examining the doctor to prove the medical certificate produced. Pending that enquiry, the next friend who was another son of the claim petitioner passed away. An application was moved by the wife of that son to continue the proceeding as the next friend of the claim petitioner. That application was filed on 14/10/2009, the date on which the claim petition stood posted for enquiry. The claim petition was dismissed by the learned Sub Judge taking note that no steps were taken. Propriety and correctness of that order is challenged in the writ petition. 2. Having regard to the submissions made and taking note of the facts and circumstances presented, a report was called for from the learned Sub Judge. It is reported that the filing of the petition by the wife of the person who previously appeared as next friend, and who had passed away, has not been brought to the notice of the W.P.(C).No.32731 OF 2009 Page numbers court as and when the claim petition came up for consideration on 14/10/2009. Whatever that be, it is open to the petitioner to move a review petition seeking for modification of the order of the court bringing to its notice the filing of the petition to represent the claim petitioner as her next friend in the place of the person who previously sought permission to appear as a next friend, but had passed away. If any such application is moved within two weeks from the date of production/receipt of a copy of this judgment, the court below shall consider it and dispose it in accordance with law. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv