IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23814 of 2010(O)
1. MILRED JOSEPH, D/O.MARTIN JOSEPH,
... Petitioner
Vs
1. DIANA JOSEPH, D/O.MARTIN JOSEPH,
... Respondent
For Petitioner :SRI.S.M.PREM
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/07/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P (C) No.23814 of 2010
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Dated this the 30th day of July, 2010
J U D G M E N T
Petitioner filed O.S.No.491 of 2008 but suffered a decree on
the counter claim raised by respondent. He has challenged the
decree in A.S.No.31 of 2009 and preferred I.A.No.201 of 2010 for
stay of execution of the decree on the counter claim. In the
meantime respondent initiated execution proceedings and filed
E.P.No.48 of 2010. While so, petitioner is said to have filed
E.A.No.221 of 2010 on 18-06-2010 in the executing court seeking
stay of delivery on the ground that his appeal is pending
consideration. The executing court on 19-06-2010 passed the
impugned order stating that “No E.A is seen filed as submitted by
judgment debtor’s counsel. Delivery on 21-06-2010”. That order
is under challenge. Learned counsel states that E.A.No.221 of
2010 was in fact filed on 18-06-2010 but that fact was overlooked
by the executing court in passing the impugned order.
2. As seen from the impugned order, it is not as if
application filed by petitioner has been disallowed on merit.
Executing court has only stated that no such E.A is seen filed. If
as on the day impugned order was passed E.A.No.221 of 2010
: 2 :
was on record, remedy of petitioner is to seek a review of the
impugned order by bringing to the notice of executing court that
the impugned order suffers from an apparent error on the face of
the record in that, E.A.No.221 of 2010 was on record when the
impugned order was passed stating that no such E.A is filed. It is
also open to the petitioner to seek stay from the appellate court
as he has already moved that court. I leave petitioners to seek
appropriate remedies as above stated. There is no reason why
this court should interfere with the impugned order, on the facts
and circumstances stated above.
Resultantly without prejudice to the right of petitioner to
seek appropriate remedy, this writ petition is closed.
THOMAS P JOSEPH
JUDGE
Sbna/