IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 5026 of 2005(W)
1. KESAVA PILLAI KUTTAN PILLAI,
... Petitioner
2. CHELLAPPAN PILLAI CHANDRAN PILLAI,
3. KUNJUKRISHNA PILLAI,
4. THANKAMMA AMMA,
Vs
1. P.GOPALAKRISHNA PILLAI,
... Respondent
For Petitioner :SRI.B.MOHANLAL
For Respondent :SRI.T.SAJI
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :04/07/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) No. 5026 OF 2005
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Dated this the 4th day of July, 2007
JUDGMENT
The petitioner is the judgment debtor in OS No.40 of 1992,
wherein a decree of declaration of right of way by prescriptive easement
and consequential injunction is passed against the petitioner. In
execution of the decree on the allegation that the decree has been
violated by the petitioner, the respondent decree holder filed Execution
Petition before the execution court. The execution court passed a non-
speaking order and allowed execution, posting the case for delivery
report by the amin. On 20.02.2004, that order was set aside by this
court as per Ext.P9 judgment, noticing that the order of the execution
court is not a speaking order and that the objections filed by the
petitioners have not been considered. This court specifically directed
that the issue be re-considered by the execution court after affording
opportunity to both sides and after considering the evidence adduced by
the parties. Pursuant to that the learned Munsiff passed order on 2nd
November 2004 noting the presence of the decree holder and deputing
the officer of the court for executing the decree. Since the order of 2nd
November, 2004 was equally a non-speaking order, the petitioner filed
Ext.P10 application for review of the said order. The review petition was
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dismissed by the learned Munsiff on the ground of delay by passing
Ext.P11 order. May be the application for review was not filed within the
prescribed time and learned execution court would have thought that it
had no power to condone the delay in terms of Section 5 of the Indian
Limitation Act. But at the same time I notice that the order sought to be
reviewed was the order of 02.11.04 which was a totally non-speaking
order. In view of Ext.P9 judgment of this court the execution court could
have suo motu reviewed that order even without any application. The
order dt.02.11.04 is liable to be set aside under the supervisory
jurisdiction under Article 227 since the same is violative of the directions
in Ext.P9 and I do so. Another order which is challenged in this case is
Ext.P13 order. This order is passed on an application filed for
amendment of the decree. I notice that the amendment application was
not maintainable before the execution court.
Petitioners are allowed to file an application for amendment in
terms of Ext.P12 before the trial court and if such an application is filed
before the court below within one month from today, the trial court will
invite objections from the plaintiff and hear both sides and dispose of the
application within another one month of receiving that application
without being influenced by Ext.P3.
PIUS C. KURIAKOSE, JUDGE
btt
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