IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5075 of 2009(O)
1. S. GIRIJA, W/O. RAVI,
... Petitioner
2. ASWATHY.G.R, D/O. GIRIJA,
3. ATHIRA, D/O. GIRIJA,
Vs
1. S. KRISHNAN, S/O. SANTHAN,
... Respondent
2. C. RAVI, S/O. CHELLAN,
For Petitioner :SRI.M.K.SHASHI KUMAR
For Respondent :SRI.L.MOHANAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :09/11/2010
O R D E R
HARUN-UL-RASHID,J.
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W.P.(C) NO.5075 OF 2009
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DATED THIS THE 9TH DAY OF NOVEMBER, 2010
JUDGMENT
Petitioners are the claim petitioners in E.P.No.57/2006
in O.S.No.134/2005 on the file of the Sub Court, Neyyattinkara.
The suit was filed by the lst respondent herein against the 2nd
respondent for realisation of an amount of Rs.1,13,000/- with
interest. The suit was decreed ex parte on 22/12/2005. The claim
petitioners are wife and two daughters of the judgment debtor. It is
stated in the writ petition that the judgment debtor was unable to
contest the case, as he was put in jail in a criminal case during the
relevant period and the petitioners were unaware of the pendency
of the above case and passing of the ex pare decree.
2. The decree holder proceeded against the property
having an extent of 7 cents belonging to the judgment debtor. The
petitioners claimed title to the property on the strength of a
settlement deed No.1614/2005 dated 6/12/2005. Ext.P1 is the
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settlement deed. The claim petition was filed stating that they have
got absolute title in respect of the property and that they are
residing in the property and eking out their livelihood by running a
small workshop of akri items. It is also contended that they are
labourers and therefore the property cannot be the subject matter of
attachment and sale being exempted under Section 60 CPC.
3. Claim petition was posted to 16/12/2006 for
evidence. On that day there was no appearance and therefore the
court below dismissed the claim petition. Ext.P5 is the said order.
In Ext.P5 it is stated that the claim petitioners absent and prayer
rejected. Learned counsel for the petitioners submitted that the
claimants filed an application for adjournment of the case stating
the reasons for adjournment. The said prayer was rejected and the
claim petition was dismissed. Subsequently, the petitioners filed
E.A.No.69/07 for reviewing Ext.P5 order. Ext.P6 is the said
application. The application for review was taken up for
consideration on 13/2/2008. On that day the said petition was also
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dismissed stating that the petition has become infructuous as sale
was over. Ext.P7 is the said order.
4. Exts.P5 and P7 orders are under challenge. The
claim petition was dismissed on the date of posting for evidence.
The prayer for adjournment was rejected. There is no consideration
of the claim petition on merits. Subsequently, the application for
review of the said order was also rejected by a cryptic order without
examining the contentions of the applicants. It is seen that there is
no consideration of the matter on merits at any point of time.
5. In the circumstances, this Court is of the view that an
opportunity shall be given to the claim petitioners to substantiate
their case. Exts.P5 and P7 are set aside only for the reason that the
execution court failed to go into the merits of the contentions of the
claim petitioners. The execution court shall consider and dispose of
the claim petition on merits, after hearing the parties, within a
period of six months from the date of appearance of the parties.
The parties shall be afforded reasonable opportunity to adduce
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evidence. The parties shall appear before the court below on 6th
December, 2010.
Writ Petition is disposed of as above.
HARUN-UL-RASHID,
Judge.
kcv.