R.P.Vetrivel vs Pazhaniswami on 13 October, 2006

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

EFA No. 32 of 1994()



1. R.P.VETRIVEL
                      ...  Petitioner

                        Vs

1. PAZHANISWAMI
                       ...       Respondent

                For Petitioner  :SRI.G.HARIHARAN

                For Respondent  :SRI.V.CHITAMBARESH

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :13/10/2006

 O R D E R
              THOTTATHIL B. RADHAKRISHNAN, J.

                   =====================
                                E.F.A. 32 OF 1994
                   =====================
             Dated this the 13th day of October, 2006



                             JUDGMENT

This appeal is against the dismissal of a claim petition under

Order 21 Rule 58 of the Code of Civil Procedure. The claim

petitioner is the appellant.

2. Based on a promissory note dated 30.6.1979, the suit

O.S. 126 of 1985 was filed, leading to a decree that was

confirmed in first appeal. The claim petitioner, on the basis of a

promissory note dated 3.1.1983, filed O.S. No. 562 of 1992 on

28.11.1992 and obtained a decree on the defendant confessing

judgment on the first date of hearing i.e, 18.1.1993. The claim

petition from which this appeal arises is signed on 18.1.1993 and

filed on 19.1.1993.

3. The court below found that the execution proceedings

in O.S. No. 126 of 1985 from which this appeal arises was listed

EFA 32 OF 1994 2

on 14.10.1982 and since the judgment debtor remained absent,

the sale was posted on 30.11.1992 and that it was in the

meanwhile that the judgment debtor and the claim petitioner

colluded in the institution of O.S. No. 562 of 1992 by the claim

petitioner on 28.11.1992 leading to the decree herein, on

confession, on 18.1.1993. After filing O.S. No. 562 of 1992 on

28.11.1992, the judgment debtor also filed E.A. No. 1071 of 1992

to set aside the ex-parte order against him and that was how the

sale on 30.11.1992 was averted. It was further noticed that O.S.

No. 562 of 1992 was filed on 28.11.1992, after issuing a notice on

26.11.1992 and without awaiting any reply. The Court below,

after adverting to the materials on record, held that the claim

petition is based on a collusive litigation between the judgment

debtor and the claim petitioner. The claim petition was

accordingly dismissed.

4. Having heard the counsel for the appellant, on the

basis of the aforesaid facts and circumstances, I do not find any

illegality, irregularity or impropriety in the proceedings of the

EFA 32 OF 1994 3

Court below or that the impugned judgment is illegal and wrong

on any ground either on facts or in law. The appeal is without

any merits. It fails. The same is accordingly dismissed. Since the

Court below has imposed compensatory cost of Rs. 3,000/-, I

deter from imposing any further order of costs.

THOTTATHIL B. RADHAKRISHNAN,
JUDGE

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