IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 33623 of 2005(C)
1. VILASINI, AGED 70 YEARS,
... Petitioner
Vs
1. WEIZMANN HOMES (P) LTD.,
... Respondent
For Petitioner :SRI.P.K.SAJEEV
For Respondent :SRI.SUNU P.JOHN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :01/06/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) No. 33623 OF 2005
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Dated this the 1st day of June, 2007
JUDGMENT
In a suit for money filed by the 1st respondent against the son, the
husband of the petitioner filed a claim petition objecting the attachment
of immovable property before judgment. The learned Subordinate
Judge directed the claim petitioner to deposit the plaint amount in a
bank and to produce the receipt. Upon production of the receipt the
learned Sub Judge noted a lien for the plaint claim on the Fixed Deposit
receipt and closed the claim petition itself by Ext.P8 order. A review of
Ext.P8 was sought for by the petitioner’s husband who filed IA No.9 of
2004. IA No.7200 of 2003 seeking condonation of the delay caused in
the matter of the IA was also filed. The learned Sub Judge dismissed IA
No.9 of 2004 as well as the delay petition by orders Exts.P13 and P14
finding that there is no sufficient reason for condoning the delay (93
days only) and also that there is no error apparent on the face of the
record so as to warrant review of Ext.P8 under Order XLVII Rule 1. In
this proceeding under Article 227 of the Constitution the petitioner
impugns Exts.P8, P13 and P14.
2. All claim petitions whether they be under Order XXI Rule 58 on
the execution side or under Order XXXVIII Rule 8 on the trial side as it
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was in this case, are expected to be adjudicated by the court concerned
and by virtue of Clause 2 and 4 of Rule 58 of Order XXI, the orders
resulting from the adjudication are to be construed as the decrees for
purpose of appeal. In the instant case what the learned
Subordinate judge has done is to close the claim petition after noting a
lien on the Fixed Deposit receipt which was produced as security in
response to a direction by the Court. The learned Subordinate judge
who was bound to adjudicate the claim has not done so. The non-
adjudication of the claim mandated by the Rule was an error apparent
on the face of Ext.P8. The learned judge has erred in holding that
Ext.P8 is not vitiated by any error apparent on the face. The extent of
the delay was only 93 days and the reason stated by the learned judge
for not condoning the delay is also not valid.
The result is that the writ petition will stand allowed. Since I
quash Ext.P8, it is not necessary to quash Exts.P13 and P14. Ext.P8 is
quashed and the learned subordinate judge is directed to adjudicate the
claim lodged by the petitioner’s late husband on behalf of the petitioner
in IA no.3954 of 2003 in IA No.3691 of 1003 in OS No.535 of 2003 after
permitting both the parties to adduce whatever evidence they have at
their command. After the entire evidence sought for by the parties
comes on record, the learned Sub Judge will pass orders on the claim
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petition notwithstanding the disposal of the suit. The learned judge will
complete the adjudication and pass orders on the claim petition at the
earliest and at any rate within three months of receiving copy of this
judgment. Till such time as the above directions are complied with, the
execution proceeding in so far as they are directed against the property
which is the subject matter of the claim shall be kept in abeyance.
PIUS C. KURIAKOSE, JUDGE
btt
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