Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 3rd DAY OF JUNE 2022 / 13TH JYAISHTA, 1944 EX.FA NO. 3 OF 2019 (B) AGAINST THE ORDER DATED 26.06.2018 IN EA No.77/2018 IN EP No.257/15 IN OS No.748/2012 OF PRINCIPAL SUB COURT, PALAKKAD APPELLANT/PETITIONER: PARAMJYOTHI, AGED 67 YEARS, S/o LATE KESAVAN, KURUPPATH HOUSE, ALAMPALLAM, KALLEPPULLY AMSOM, KALLEPPULLY P.O.PALAKKAD. BY ADVS. R.HARISHANKAR SMT.PARVATHY NAIR RESPONDENTS/RESPONDENTS:
1 SAITHU, S/o ALI RAVUTHER, PANTHAKMOOCHI VEEDU, VANDITHAVALAM, CHITTUR TALUK, PALAKKAD 678 534. 2 JOHN JOSEPH, AGED ABOUT 43 YEARS, S/o ENASIMUTHU, MATHA VEEDU, SELVAPALAYAM, KUNNANNUR AMSOM DESOM, KUNNATHURMEDU P.O., PALAKKAD-678 013. 3 SUGUNASEKHARAN, AGED ABOUT 43 YEARS, S/o CHENTHAMARAKSHAN, DOOR No. 1/47,PATTANCHERI VILLAGE, NANIYODE, CHITTUR TALUK, PALAKKAD 678 534. R1 & R2 BY ADVS. SMT.A.SINDHULAKSHMY SRI.C.V.MOHAN SMT.ANJANA MOHAN
THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: EX FA No.3 of 2019 2
JUDGMENT
The impugned order is extracted below for reference: “Petition filed under Order 21 Rule 58 of the Code of Civil Procedure to stop sale of the scheduled property. Cost paid. Petitioner not present. Petitioner called absent. Execution Application dismissed. No costs.”
2. It is pertaining to an application submitted under
Order XXI Rule 58 C.P.C. by a claimant. It was dismissed in
a clandestine manner, that too, without a speaking order
touching on the merits and demerits of the application. It is submitted that a restoration petition submitted under Rule 106 CPC was also dismissed by the same court.
3. It is not even advisable to dismiss an application under Order XXI Rule 58 C.P.C. in a routine way without affording ample opportunity to the party to adduce evidence
and without conducting an enquiry as mandated. The dismissal of the application on the ground that 'cost paid, but petitioner called absent' really amounts to defeating justice. It is not discernible from the order for what
purpose cost was ordered and why the application was EX FA No.3 of 2019 3 dismissed if the cost was already paid. Strange enough, an
application under Order XXI Rule 58 CPC was referred in the impugned order as the one to stop the sale of the property by the court below. This would show that the court below did not understand the purpose and scope of enquiry of an application under Order XXI Rule 58 C.P.C. The application submitted for restoration of the claim petition was also
dismissed by the execution court. This would prima facie show the way and the manner in which an application under
Order XXI Rule 58 C.P.C. was handled by the learned Sub
Judge. The approach of the learned Sub Judge is highly damaging the system and the jurisdiction vested with the Sub Judge was not even properly understood by the learned Sub Judge. I am at a loss to understand what actually meant by the learned Sub Judge by the abovesaid observation. The approach of the execution court in dealing with an application under Order XXI Rule 58 C.P.C. and also the application under Rule 106 C.P.C. is hence deprecated. It is also not discernible from the order as to for what purpose cost was ordered and why the execution application was dismissed in spite of its payment, that too, without EX FA No.3 of 2019 4 affording an opportunity to the petitioner to adduce evidence. The fact that the application for restoration of claim petition was also dismissed by the execution court would speak volume and hence injurious to the very system. The impugned order is hereby set aside. The matter is remanded back to the execution court for fresh disposal in accordance with the law in force. The parties shall appear before the execution court on 15/06/2022. The appeal is allowed in part accordingly. The Registry is directed to send a copy of this
judgment along with a copy of the impugned order to the
Director (Academics), Kerala Judicial Academy for future guidance. Sd/- P.SOMARAJAN JUDGE DMR/-