IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21563 of 2008(P)
1. K.P.ANIL KUMAR
... Petitioner
Vs
1. THE SECRETARY
... Respondent
2. THE PROJECT OFFICER
3. THE DISTRICT COLLECTOR, KOLLAM
4. K.DEVAKI AMMA, AGED 67 YEARS,
For Petitioner :SRI.N.AJITH
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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WP(C).No. 21563 OF 2008
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DATED THIS THE 24th DAY OF JULY, 2008
JUDGMENT
This petition is filed under Article 227 of Constitution of
India to quash Ext.P8 order passed in Ext.P6 application and also
for a direction to the executing court to consider and pass orders
in Ext.P5 and P7 applications. Petitioner is the plaintiff in
O.S.252 of 2005 on the file of Munsiff-Magistrate Court,
Sasthamcotta. Under Ext.P1 judgment dated 22.9.2006,
respondents 1 to 3, the defendants 1 to 3 in the suit, were
restrained by a permanent prohibitory injunction from
proceeding against petitioner as stated in Ext.A1 notice dated
27.7.2005 issued by first respondent, till a decision is arrived at
on his membership in Sooranadu Grama Vikasama Society.
Ext.P5 execution petition was filed against respondents 1 and 2
to proceed against them for violation of Ext.P2 decree in that
suit. Ext.P6 application was filed, contending that in spite of
Ext.P1 judgment and Ext.P2 decree, Ext.P4 notice was issued for
realisation of the amount from the petitioner. Ext.P7 petition was
filed for stay of proceedings taken by respondents 1 to 3 for
violation of the decree. Learned Munsiff dismissed Ext.P6
WP(C) 21563/2008 2
application under Ext.P8 order.
2. Learned counsel appearing for petitioner argued that
Ext.P8 order is illegal as the contentions of petitioner in Ext.P6
application was not considered by the court at all. Learned
counsel appearing for respondents 1 and 2 and learned
Government Pleader submitted that Ext.P1 is an exparte decree
and respondents 1 and 2 have taken steps to get the exparte
decree set aside.
3. On hearing the learned counsel appearing for petitioner,
respondents 1 and 2 and learned Government Pleader, and going
through Ext.P8 order, it is absolutely clear that learned Munsiff
did not consider Ext.P6 application on merits. Ext.P6 application,
alleging that in violation of Ext.P2 decree, respondents 1 to 3
proceeded against petitioner for realisation of the amount, by
issuing Ext.P4 notice and therefore action is to be taken against
them, was disposed as follows:-
“Already execution petition to execute
the decree is filed and is pending
disposal. Hence this petition has
become infructuous and dismissed”.
Learned Munsiff did not consider the allegation raised by
WP(C) 21563/2008 3
petitioner with regard to issuance of Ext.P4 notice. But the
allegation in Ext.P5 execution petition is also based on Ext.P4.
In such circumstances, Ext.P8 order is quashed. Learned
Munsiff is directed to dispose E.P.27 of 2008 and the
applications filed by petitioner including Ext.P6 and P7 in
accordance with law.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-