IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 WP(C).No. 29965 of 2007(P) -------------------------------------- OS.719/1989 OF SUB COURT,NEYYATTINKARA. .................... PETITIONERS: --------------------- 1. R.S.HARIKUMAR, ADVOCATE, KRISHNA VILASOM, KIZHAKKETHERUVU, NEYYATTINKARA FROM REMADEVI MANDIRAM, KEEZHKOLLA DESOM, CHENKAL PAKUTHI. 2. R.S.MOHANACHANDRAN @ KANNAN, KRISHNA VILASOM, KIZHAKKETHERUVU, NEYYATTINKARA FROM REMADEVI MANDIRAM, KEEZHKOLLA DESOM, CHENKAL PAKUTHI. BY ADV. SRI.G.P.SHINOD, SRI.RAM MOHAN.G., SRI.MANU V. RESPONDENT: ---------------------- BHAVANI AMMA, PANKAJAKSHI AMMA, PIRIYAKKOTTU VEEDU, PANGAPPARA VILLAGE. BY ADV. SRI.G.SUDHEER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.29965/2007-P: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE EXECUTION PETITION E.P. 34/2002 IN O.S. 719/1989 ON THE FILES OF THE SUB COURT, NEYYATTINKARA. EXT.P.2: COPY OF THE ORDER DTD. 10/10/2006 IN E.P. 34/2002 IN O.S. 719/1989. EXT.P.3: COPY OF THE PETITION E.A. 380/2006 IN E.P. 34/2002 IN O.S. 719/89 ON THE FILES OF THE SUBORDINATE JUDGE'S COURT, NEYYATTINKARA. EXT.P.4: COPY OF THE OBJECTION FILED TO EXT.P.3. PETITION. EXT.P.5: COPY OF THE ORDER IN E.A. 380/2006 IN E.P. 34/2002 IN O.S. 719/1989 OF SUB JUDGE, NEYYATTINKARA. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 29965 OF 2007 = = = = = = = = = = = = = = = Dated this the 19th day of February, 2008. J U D G M E N T This writ petition is preferred challenging the order of the Subordinate Judge, Neyyattinkara in E.A.380/06 in O.S.719/89. The E.P. was dismissed as not pressed as per the order dated 10.10.06. It was to restore that E.P. the present execution application was filed. The learned counsel for the decree holder would submit before me that the Court happened to pass an incorrect order because it did not properly advert to the memo filed by the decree holder's counsel dated 7.10.06. On 7.10.06 a memo is filed by the counsel for the decree holder to the effect that the decree holder is not seeking any relief with respect to item No.2 of the proclamation scheduled property. The learned counsel appearing for the decree holder before me would contend that without properly understanding the scope of the memo by mistake the Court had closed the E.P. as not pressed. If W.P.C 29965 OF 2007 -:2:- it is done on the basis of the statement said to have been filed on 7.10.06 it goes without saying that the order passed by the Court below is incorrect. 2. The learned counsel for the writ petitioner submits before me that when an execution petition is dismissed as not pressed no application to restore it will lie and the remedy is elsewhere. If it is a mistake committed by the Court it is rather an imperative duty of the Court to correct when it is brought to the notice of the Court in any form. Therefore I set aside the order passed by the Court below and direct it to consider the impact of the memo said to have been filed on 7.10.06 and if it is dismissed as not pressed on the erroneous assumption that the whole E.P. is not pressed, the Court shall either review its order suo motu or allow the application for restoration, as the case may be, after hearing both sides. Both the parties are directed to appear before the Court below on 17.3.2008. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-