IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 WP(C).No. 11595 of 2008(E) -------------------------- AGAINST THE ORDER DATED 27/11/2006 IN EA.380/06 IN EP.234/04 IN OS.97/2003 of ADDL.SUB COURT, ALAPPUZHA .................... PETITIONER: JUDGMENT DEBTOR --------------- GIRIJA KRISHNA KUMAR, AGED 59 YEARS, KRISHNAMANAGALAM VEEDU, KATTUR MURI, KALAVOOR P.O., ALAPPUZHA. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SRI.T.S.ARUN KUMAR RESPONDENTS: DECREE HOLDER ----------------- JOY.K., PARAPPATHY VEETTIL, MULLACKAL, ALAPPUZHA. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.11595/2008 Ext.P1 A TRUE PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 21.4.2007. EXT.P2 A TRUE PHOTOCOPY OF THE ORDER DATED 27.11.2007, IN EA.NO.380/06 IN EP. 234/04 EXT.P3 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 2.7.2007 IN W.P.(C) NO.20163/2007 OF THIS HON'BLE COURT. EXT.P4 A TRUE PHOTOCOPY OF THE ORDER DATED 6.3.2008 IN EA.NO204/2007 EXT.P5 A TRUE PHOTOCOPY OF THE ORDER DATED 6.3.2008 IN EA.NO.205/2007 //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.11595 of 2008 ------------------------------- Dated this the 10th June, 2008. J U D G M E N T Petitioner is the judgment debtor in O.S.No.97/2003, on the file of the Sub Court, Alappuzha. Respondent-decree holder filed E.P.No.234/2004 for sale of the property and for realisation of the decree debt. Property was sold in auction. Thereafter, petitioner filed E.A.No.380/2006, an application to set aside the sale conducted by the court on 18.8.2006. It was dismissed for default under Ext.P2 order on 27.11.2006. Petitioner thereafter challenged that order before this Court by filing W.P.(C) No.20163/2007. That writ petition was withdrawn with liberty to approach the Executing Court. Petitioner, thereafter, filed E.A.No.204/2007 to condone the delay of 7 months and 20 days, and E.A.No.205/2007 to restore the application which was dismissed for default. Under Exts.P4 and P5 orders, those petitions were dismissed. This petition is filed under Article 227 of the Constitution of India challenging Exts.P4 and P5 orders. W.P.(C) No.11595/2008 2 2. Though notice was served on the respondent, he did not appear. The learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel appearing for the petitioner is that Executing Court did not properly consider the evidence of the petitioner as PW.1 or that of the doctor as PW.2. The learned counsel argued that though there was a delay in filing the application, in the light of the evidence of the petitioner and the doctor, the court below should have granted an opportunity to the petitioner so as to get a decision on merit in E.A.No.380/2006. Ext.P2 order shows that E.A.No.380/2006 was dismissed on the failure of the petitioner to appear, inspite of specific posting for evidence as last chance. The conduct of the petitioner shows that she was not diligent enough in conducting the case. Otherwise, there would not have been a delay of more than 7 months in filing an application to restore the application which was dismissed for default. But even if there is a delay, Executing Court could have granted an opportunity to the petitioner on terms. As it was not granted, Exts.P4 and P5 orders would stand quashed, on the petitioner paying or depositing a cost of Rs.2000/= to the judgment debtor within 30 days from today. The W.P.(C) No.11595/2008 3 deposit is to be made before the Executing Court. If the petitioner deposits Rs.2000/= as cost to be paid to the respondent before the Executing Court, E.A.Nos.204 & 205 of 2007 will stand allowed and E.A.No.380/2006 will stand restored, in which case, Executing Court shall dispose E.A.No.380/2006, after granting an opportunity to the petitioner and respondent to adduce evidence. It is made clear that if E.A.No.380/2006 stand restored, as stated above, petitioner shall get ready for evidence and shall not seek any adjournment. If cost is not deposited as directed, the writ petition will stand dismissed and Exts.P4 and P5 orders will stand. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.