High Court Kerala High Court

Sndp Branch No.2682 Ponnurunni … vs V.K.Ajitha Kumary on 14 June, 2010

Kerala High Court
Sndp Branch No.2682 Ponnurunni … vs V.K.Ajitha Kumary on 14 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 18410 of 2010(O)


1. SNDP BRANCH NO.2682 PONNURUNNI WEST
                      ...  Petitioner

                        Vs



1. V.K.AJITHA KUMARY,
                       ...       Respondent

2. B.SURENDRAN,

3. P.RAVEENDRAN,

                For Petitioner  :SRI.A.N.RAJAN BABU

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :14/06/2010

 O R D E R
                             THOMAS P. JOSEPH, J.
                            --------------------------------------
                            W.P.(C) No.18410 of 2010
                            --------------------------------------
                      Dated this the 14th day of June, 2010.

                                      JUDGMENT

Judgment debtor No.3 in E.P.No.335 of 2009 in O.S.No.1482 of 2006 of

the court of learned Munsiff, Ernakulam is the petitioner before me seeking stay

of execution of decree until Exts.P5, P6 and P8, applications for setting aside

the exparte decree, condonation of delay of 1093 days and for stay of execution

of exparte decree are disposed of by the learned Munsiff. Respondent No.1 filed

a suit for recovery of Rs.50,000/- from petitioner and respondent Nos.2 and 3.

There was an exparte decree in favour of respondent No.1. With 1093 days

delay petitioner filed applications to set aside the exparte decree and to stay

execution of that decree. According to the petitioner respondent No.1 is

avoiding notice on the said applications but she is vigourously prosecuting the

execution petition where executing court has ordered attachment of immovable

properties of petitioner. Learned counsel submits that application for attachment

of immovable property of petitioner is pending consideration of the executing

court of this day. It is also pointed out by learned counsel that in similar cases

where petitioner had opportunity to contest, petitioner was found not liable to pay

the amount allegedly received by respondent Nos.2 and 3.

2. As it is, there is a decree though exparte in favour of respondent

No.1 which binds petitioner. Until that decree is set aside it remains in force

WP(C) No.18410/2010

2

and is executable. Having regard to the circumstances of the case I do not

consider it necessary or proper to stay execution of the decree as prayed for. It

is open to the petitioner to show cause against attachment of its property and if

petitioner is so advised, it can also avoid attachment by furnishing security as

provided by law. Even when the attachment is effected be it in execution

petitioner can furnish security and request for lifting of attachment of the

property (see Sidharthan v. Praveen Chandran (2008 (1) KLT 136).

In that situation there is no reason why this Court shall stay execution of the

decree. However I direct the learned Munsiff to expedite disposal of Exts.P5, P6

and P8, applications pending consideration in O.S.No.1482 of 2006. Learned

Munsiff shall make every endeavour to dispose of the said applications at the

earliest.

Writ Petition is disposed of with the above direction.

THOMAS P.JOSEPH,
Judge.

cks