Rajamma Martin @ Achamma vs Tom Joseph on 17 February, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Ex.FA.No. 29 of 2009()


1. RAJAMMA MARTIN @ ACHAMMA, D/O.M.J.CHACKO
                      ...  Petitioner
2. THRESIAMMA @ PUZHAPAMMA, D/O.M.J,.CHACKO

                        Vs



1. TOM JOSEPH, S/O.JOSEPH, KALARIPPARAMBIL
                       ...       Respondent

2. KURIAN JACOB, S/O.M.J. CHACKO,

3. JAMES JACOB, S/O.M.J.CHACKO,

4. BENNY JACOB, S/O.M.J.CHACKO,

5. ROSAMMA @ AGNESS, D/O.M.J.CHACKO,

                For Petitioner  :SRI.SABU GEORGE

                For Respondent  : No Appearance

The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :17/02/2009

 O R D E R
      KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ.
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                      Ex.F.A. No.29 of 2009
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                   Dated 17th February, 2009.

                           J U D G M E N T

Kurian Joseph, J.

This is an appeal against the order dated 15.1.2009 in

EA 582/06 in EP 257/04 in O.S.301/98 on the file of the Principal

Sub Court, Kottayam. As per the said order, the application filed

by the petitioners under Order 38 Rule 5 read with Order 21 Rule

58 of the Code of Civil Procedure has been dismissed. A perusal

of the order would show that the claim petition was dismissed for

the reason that the claim petitioners are absent. True, the

execution court has also referred to the merits of the case to the

effect that no materials have been produced and that it was

dismissed once, and still further that there is no bonafides in the

petition. We are afraid, those observations were unnecessary

since they are made in the absence of the party. Therefore,

essentially this is an order passed under Rule 105(2) of Order 21

of the Code of Civil Procedure since the claim petitioners are

absent. Hence, any observations made in the order do not have

any bearing while considering an application under Rule 106 for

restoration. That petition will have to be independently

Ex.F.A. NO.29/09 2

considered. Learned counsel for the appellants invites reference

to Annexure A Medical Certificate. That is a matter to be

considered by the court while passing orders on the application

for restoration under Rule 106. Therefore, we dismiss the appeal;

making it clear that in the event of the appellants pursuing the

remedy under Rule 106 Order 21, the same shall be

independently considered, untrammelled by any of the

observations in the order under appeal.

I.A.No.518/09 : Dismissed.

KURIAN JOSEPH, JUDGE.

S.S.SATHEESACHANDRAN, JUDGE.

tgs

KURIAN JOSEPH &

S.S.SATHEESACHANDRAN, JJ

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Ex.F.A. No.29 of 2009

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J U D G M E N T

Dated 17th February, 2009.