IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 3515 of 2008(R)
1. SUMATHY, AGED 74 YEARS, D/O.BHARATHI,
... Petitioner
Vs
1. RAJU, S/O.KUTTAPPAN, YAVANIKA HOUSE,
... Respondent
For Petitioner :SRI.S.MOHANAN
For Respondent :SMT.A.SALINI LAL
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :30/01/2008
O R D E R
M.N.KRISHNAN, J.
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W.P.(C). NO. 3515 OF 2008
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Dated this the 30th day of January, 2008
JUDGMENT
This writ petition is preferred for a direction to the
Subordinate Judge, Mavelikkara to dispose of IA Nos.2180 & 2181 of
2007 in OS 77/01 before ordering delivery of the property and
disposing IA 35/08.
2. The defendant in the suit, against whom an ex parte decree
has been passed, is the writ petitioner before me. It is submitted that
due to sickness and senility of her husband she was unable to
prosecute the case, which resulted in passing of an ex parte decree .
The petitioner have moved applications for condoning the delay and
setting aside the ex parte decree, which is pending before the
Subordinate judge’s Court. Now the prayer is to stall delivery of the
property till a final decision is taken on those applications. There
appears to be considerable force in the said contention.
3. Learned counsel for the respondent would submit before me
that as the decree is already executed by registering the document,
the question of further stalling the execution of the decree does not
arise at all.
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4. Whatever it may be, when an application for setting aside ex
parte decree is filed and if it is allowed certainly the validity of the
decree will vanish. Therefore just because a document is executed it
shall not stand in the way of disposal of the applications filed, to set
aside the ex parte decree.
Therefore I direct the Subordinate Judge, Mavelikkara to
dispose of IA Nos. 2180 and 2181 in OS 77/01 within a time frame of
four weeks from the date of receipt of a copy of this judgment. The
court below is further directed not to proceed with the delivery of the
property, till a final decision is taken on those applications.
M.N.KRISHNAN, JUDGE
vps
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