IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29417 of 2007(B)
1. PRASANNAKUMARI,
... Petitioner
Vs
1. C.S.SUKUMARAN NAIR, T.C.29/1385,
... Respondent
2. L.V.SAVITHRI AMMA, M.P.MANDIRAM,
3. INDIRA DEVI, ELANJIMUTTATHU VEEDU,
For Petitioner :SRI.J.HARIKUMAR
For Respondent :SRI.P.GOPALAKRISHNAN NAIR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :29/07/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C) NO.29417 OF 2007
===========================
Dated this the day of 2007
JUDGMENT
Petitioner is the 4th defendant and first
respondent is the third plaintiff in O.S.1094/1994
on the file of Munsiff Court, Thiruvananthapuram.
Plaintiffs 1 and 2 are no more. It is submitted by
both the petitioner and first respondent that there
are no other legal heirs for plaintiffs 1 and 2 to
be impleaded. Ext.P4 decree was passed on 11.1.2002
declaring right of plaintiffs to plaint A schedule
property. A mandatory injunction directing
defendants to demolish the unauthorised
construction made in plaint A schedule property and
recovery of possession of plaint A schedule
property after removing the unauthorised
construction were also granted. Defendants were
also restrained from trespassing into plaint A
schedule property or destroying the boundary.
Plaintiffs were also allowed to put up compound
W.P.(C) 29417/07 2
wall using granite and bricks on the western side
of plaint A schedule property. It was an ex parte
decree. All the defendants were set ex parte.
Petitioner filed Ext.P3 petition to set aside the
ex parte decree as against her under Rule 13 of
Order IX of Code of Civil Procedure after condoning
the delay of three years five months and thirteen
days in filing the application. According to
petitioner, after she received summons in the
suit, she entrusted it to her mother first
defendant to contest the suit and her mother
engaged Advocate Parameswara Kaimal and because of
the affinity of first defendant towards first
respondent she did not contest the case and
petitioner was unaware of that fact and she came to
know about the decree only on receiving notice in
the execution petition and therefore the delay is
to be condoned and ex parte decree is to be set
aside.
2. Learned Munsiff under Ext.P6 order dismissed
the application. Petitioner challenged that order
W.P.(C) 29417/07 3
before District Court in CMA 97/2006. Under Ext.P8
order the appeal was dismissed. Petitioner has
filed this petition under Article 227 of
Constitution of India challenging Exts.P6 and P8
orders.
3. Learned counsel appearing for petitioner
and first respondent were heard.
4. Learned counsel appearing for petitioner
argued that after receipt of the summons petitioner
entrusted her mother the co-defendant to contest
the case and petitioner was under the belief that
mother is contesting the case and only on receipt
of the notice in the execution petition, she came
to know that suit was decreed ex parte. She
therefore contended that the ex parte decree is to
be set aside after condoning the delay. Learned
counsel argued that after Ext.P4 decree first
respondent filed I.A.20/2002 on 1.1.2002, an
application under Rule 17 of Order VI of Code of
Civil Procedure to amend the plaint substituting
item No.2 of the plaint schedule property from 0.5
W.P.(C) 29417/07 4
cents to 1.66 cents and no notice was served on
the petitioner in the application for amendment and
therefore learned Munsiff was not justified in
granting an ex parte decree in respect of
additional extent so amended.
5. Learned counsel appearing for first
respondent argued that petitioner had filed a
vakalath in the suit and did not file a written
statement or contest the case and after the decree
in the execution petition filed by first
respondent notice was served on the petitioner on
24.8.2003 and Ext.P3 petition was filed only on
30.7.2005 and therefore in any case the delay
cannot be condoned. Learned counsel argued that
even if it is found that plaint was amended after
the petitioner was ex parte and notice was not
served on her, the decree cannot be set aside.
6. Though Ext.P4 is an ex parte decree,
petitioner is not entitled to file a petition to
set aside the ex parte decree after a delay of more
than three years without showing sufficient cause
W.P.(C) 29417/07 5
to condone the delay of three years five months and
thirteen days in filing the application. Ext.R1(a)
copy of B Diary shows that petitioner and first
defendant had appeared and the suit was posted for
their written statement, and as they did not file
written statement they were set ex parte on
17.10.1996. It is thereafter an application for
appointment of a Commission was filed, a
Commissioner was appointed. Subsequently other
defendants were also set ex parte. Ultimately suit
was posted for evidence. Then first respondent
filed I.A.20/2002 to amend the plaint which was
allowed on 2.1.2002. Later the suit was decreed
ex parte on 11.1.2002. When the records establish
that petitioner was set ex parte as early as
17.10.1996 and that too after a vakalath was filed
on her behalf earlier petitioner has to explain the
delay in filing the petition from that date. What
is contended by petitioner is only that she
entrusted the matter with her mother who colluded
with first respondent plaintiff and allowed first
W.P.(C) 29417/07 6
respondent to obtain an ex parte decree and
petitioner came to know about the decree only on
getting notice in the execution petition. As
found by the courts below, notice in the execution
petition was served on the petitioner in August,
2003 itself. But the petition to condone the delay
and to set aside the ex parte decree was filed only
in July, 2005. That inordinate delay cannot be
condoned on the flimsy grounds shown by the
petitioner.
7. Learned counsel appearing for petitioner
argued that when petitioner was set ex parte
item No.2 of the plaint schedule property was only
one half cent which was subsequently got amended
and decree is now in respect of 1.66 cents. It was
argued that decree holder is only entitled to the
property allotted as D schedule of Ext.R1(b)
partition deed and by executing the ex parte
decree petitioner is not entitled to take more than
what he is entitled to under the partition deed
and before granting a decree an opportunity should
W.P.(C) 29417/07 7
be granted to the petitioner to get the property
properly identified.
8. On going through the orders passed by the
court below, I do not find any reason to interfere
with the refusal to set aside the ex parte decree
or to condone the inordinate delay. But
considering the submission made by the petitioner
that item No.2 of the decree schedule property, as
it now stands is the result of an amendment made
subsequent to setting petitioner ex parte in the
suit and without notice to the petitioner, interest
of justice will be served if the executing court is
directed to identify D and E schedule properties
allotted to the first respondent and petitioner
respectively under Ext.R1(b) partition deed.
Executing court shall appoint a Commission to
identify D and E properties as provided under the
partition deed and deliver the property covered
under D schedule to the decree holder who is
also entitled to get demolished any unauthorised
construction within the D schedule property
W.P.(C) 29417/07 8
therein. Executing court shall dispose the
petition as expeditiously as possible.
Writ Petition is disposed of as above.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006