IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 WP(C).No. 28857 of 2009(O) -------------------------- AGAINST THE ORDER IN IA.1390/2007 IN OS.18/2005 of PRINCIPAL SUB COURT,KOCHI .................... PETITIONER(S)/PLAINTIFFS: ------------------------- 1. N.R.JAYANTHI,W/O.LATE K.D.SAJEEV, AGED 44 YEARS,CC.NO.X/858,MANTHRA,AMARAVATHI, FORTKOCHI,NOW AT NADUVILEZHATH HOUSE, MURIKKUMPADAM,VYPIN,PUTHUVYPU VILLAGE, KOCHI TALUK. 2. VINITHA SAJEEV,D/O.LATE K.D.SAJEEV, AGED 17 YEARS,CC.NO.X/858,MANTHRA,AMARAVATHI, FORTKOCHI,NOW AT NADUVILEZHATH HOUSE, MURIKKUMPADAM,VYPIN,PUTHUVYPU VILLAGE, KOCHI TALUK. 3. APARNA SAJEEV,D/O.LATE K.D.SAJEEV, AGED 15 YEARS,CC.NO.X/858,MANTHRA,AMARAVATHI, FORTKOCHI,NOW AT NADUVILEZHATH HOUSE, MURIKKUMPADAM,VYPIN,PUTHUVYPU VILLAGE, KOCHI TALUK.(PETITIONERS 2 AND 3 ARE MINORS AND THEY ARE REPRESENTED BY IST PETITIONER MOTHER) BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.K.S.SALEESH RESPONDENT(S)/DEFENDANTS & CLAIM PETITIONER: -------------------------------------------- 1. V.N.RATHEESH,S/O.NARAYANAN, CC.NO.X/858,MANTHRA,AMARAVATHI,FORTKOCHI, NOW AT VETTUVANTHARA HOUSE,POIYA P.O.,MALA. 2. ANISH KUMAR,S/O.DIVAKARAN, CC.NO.X/858,MANTHRA,AMARAVATHI,FORTKOCHI. 3. SEETHA,W/O.ANISH KUMAR, CC.NO.X/858,MANTHRA,AMARAVATHI,FORTKOCHI. WPC.28857/09 4. SUJATHA,W/O.CHANDRABOSE, CC.NO.X/858,MANTHRA,AMARAVATHI,FORTKOCHI. 5. P.S.MOHANLAL,S/O.SIVARAMAN, PANIKKASSERY VEETTIL,PATTALAM DESOM, FORT KOCHI VILLAGE. ADV. SRI.K.L.JOSEPH FOR R5 SMT.P.SAREENA GEORGE FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.28857/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF PLAINT IN O.S.NO.657/03 FILED BEFORE MUNSIFF COURT, KOCHI. EXT.P2: COPY OF WRITTEN STATEMENT OF 1ST RESPONDENT IN O.S.18/05. EXT.P3: COPY OF WRITTEN STATEMENT OF RESPONDENTS. EXT.P4: COPY OF I.A.NO.1390/07 FILED BY THE 5TH RESPONDENT. EXT.P5: COPY OF THE COUNTER FILED BY PETITIONERS DATED 2.11.2007. EXT.P6: COPY OF PROOF AFFIDAVIT OF THE 5TH RESPONDENT. EXT.P7: COPY OF WITNESS LIST FILED BY THE 5TH RESPONDENT. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.28857 OF 2009 (O) ----------------------------------- Dated this the 6th day of November, 2009 J U D G M E N T Petitioners are the widow and children of one late Sajeev, who passed away succumbing to the injuries in an accident on 22.11.2002. Petitioners as plaintiffs instituted a suit as O.S.No.18 of 2005 on the file of the Sub Court, Kochi for recovery of possession of plaint B schedule building, prohibitory injunction against the defendants and also for mesne profits for occupation of the building by the defendants. The defendants 1 to 4 in the suit are stated to be the brother and close relatives of late Sajeev. Suit was decreed ex parte by judgment dated 25.7.2007. The defendants moved an application for setting aside the ex parte decree, which is stated to be pending consideration. Another application was moved by a third party, 5th respondent in the present petition, setting forth a case that late Sajeev owed a sum of Rs.3 lakhs WPC.28857/09 2 with 12% interest from him, and, therefore, he is entitled to have a charge over the plaint B schedule building. Ext.P4 is the copy of that application. To Ext.P4 application, plaintiffs file Ext.P5 objection. The enquiry on Ext.P4 application is continuing before the court below, in which, it is stated one or two witnesses had already been examined. Grievance canvassed by the petitioners in the present writ petition is that they are unable to enjoy the fruits of the decree in view of the delay in disposing of Ext.P4 application and also the application moved for setting aside the ex parte decree by the defendants in the suit. 2. Notice given, the 5th respondent has entered appearance. I heard the counsel on both sides. From the submissions made and taking note of the facts and circumstances presented, it appears, after disposal of a suit passing an ex parte decree, the court is conducting an enquiry on an application filed by a stranger who has not set forth a case that he is entitled to have a charge over the suit property. It appears the court below has not taken note of nor WPC.28857/09 3 considered the provisions of law which enable a party to file such an application to agitate his rights in a suit which had already been disposed of. Needless to point out an ex parte decree is as good as a decree passed on merits and the decree is not under challenge by the person who has moved Ext.P4 application. What he seeks is only a charge over the property in respect of which a decree had been granted to the plaintiffs for its recovery and that decree is confined only against the defendants arrayed in the suit. The learned counsel for the petitioners submits that previously the 5th respondent, the applicant, who moved Ext.P4 application, had filed a suit canvassing the very same case advanced, but, the plaint thereof was rejected for nonpayment of balance court fee. Whatever that be, before proceeding any further with the enquiry, the court below is directed to consider the maintainability of the application moved by the 5th respondent and pass appropriate orders thereof in accordance with law. There will be a further direction to the court below to consider and dispose of the application moved by the defendants for setting aside the ex parte decree, as expeditiously as possible, WPC.28857/09 4 at any rate, within a period of two months from the date of receipt/production of a copy of this judgment. Writ petition is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp