Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN MONDAY, THE 29TH DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943 AGAINST THE ORDER/JUDGMENT IN OS 512/1990 OF ADDITIONAL MUNSIFF COURT,CHERTHALA PETITIONER/S/DECREE HOLDER IN E.P./PLAINTIFF IN O.S.: MANUAL, AGED 64 YEARS, S/O. JOSEPH, THYVELIKAKATHU HOUSE NO. EDAPPALLY SOUTH VILLAGE, KANAYANNORE TALUK, ERNAKULAM, KOCHI 682 032. BY ADVS. R.LAKSHMI NARAYAN SMT.R.RANJANIE RESPONDENT/S/JUDGMENT DEBTOR IN E.P./2ND DEFENDANT IN O.S.: 1 GOPINATHAN AGED 79 YEARS, S/O. MADHAVI, DHARAMAVILASOM, KONATTUSSERY, VETTACKAL DESOM, PATTANAKKAD VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT 688 531.
Addl.Resp. SARASWATHI AMMA 2 W/O GOPINATHAN, DHARAMAVILASOM, KONATTUSSERY, Addl.Resp. JAYATHILAKAN 3 s/O GOPINATHAN, DHARAMAVILASOM, KONATTUSSERY, Addl.Resp. LALITHADEVI 4 D/O GOPINATHAN, DHARAMAVILASOM, KONATTUSSERY, Addl.Resp. INDIRADEVI 5 D/O GOPINATHAN, DHARAMAVILASOM, KONATTUSSERY,
(ADDL.RESPONDENTS 2 TO 5 ARE IMPLEADED, AS PER ORDER
DATED 08.10.2021) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 29th day of November, 2021 In a suit filed in the year 1990, a decree was passed on 29.10.2011. The decree holder filed execution petition in the year 2017, which is yet to be finalised. Hence, this original petition seeking expeditious disposal of the execution petition.
2. Learned Counsel for the petitioner submitted that,
by the decree, a permanent prohibitory injunction is granted, restraining the defendant from encroaching upon plaint schedule property and also a mandatory injunction directing the defendant to dismantle the unauthorised construction
effected in the property. It is submitted that the judgment
and decree was challenged without success upto the second appeal stage. The petitioner filed E.P.No.68 of 2012 earlier and the decree got executed. Thereafter, defendant encroached into the decree schedule property, compelling the petitioner to file the second execution petition (E.P.No.38 of 2017).
3. In the report called for, learned Munsiff has stated
that the judgment debtor has filed an application under Section 47 of CPC contending that the decree does not provide for fixation of boundary or removal of portion of cattle shed from the decree schedule property. It is stated that the execution petition was being adjourned at the request of parties and the petition was not taken up after the onset of Covid-19 pandemic and resulting in restricted functioning of the court. Further, the judgment debtor died in the meanwhile and steps have been taken to implead his legal heirs.
4. Learned Counsel for the petitioner submitted that
even in this original petition, legal representatives of the deceased judgment debtor are made parties and though served with notice, they have not appeared. According to the learned Counsel, their non-appearance before the executing court, despite service of notice, is also deliberate. Having heard the learned Counsel and having considered the report, the Original Petition is disposed of, directing the Additional Munsiff, Cherthala to take up the pending execution applications in E.P.No.38 of 2017, on
service of notice on the legal representatives of the judgment
debtor being completed. Earnest efforts should thereafter be taken to pass final orders in the execution petition, if possible, within three months of completion of service. Sd/- V.G.ARUN JUDGE RK APPENDIX OF OP(C) 231/2021 PETITIONER EXHIBITS EXHIBIT P1 PHOTOCOPY OF THE DECREE PASSED BY THE SUB COURT IN A.S. NO. 91 OF 2003. EXHIBIT P2 PHOTOCOPY OF THE WARRANT ISSUED IN E.P. NO. 68/2012 IN O.S. NO. 512/90 ON THE FILE OF THE ADDL. MUNSIFFS COURT, CHERTHALA. EXHIBIT P3 PHOTOCOPY OF THE E.P. NO. 38/2017 IN O.S. NO. 512/90 OF TH ADDL. MUNSIFFS COURT, CHERTHALA. EXHIBIT P4 PHOTOCOPY OF THE ORDER DATED 25.7.2019 IN E.A. NO. 79/2019 IN E.P. NO. 38/2017 IN OS 512/90. EXHIBIT P5 PHOTOCOPY OF THE E.A. NO. 298/2019 IN E.P. NO. 38/2017 IN OS NO. 512/90. EXHIBIT P6 PHOTOCOPY OF COUNTER AFFIDAVIT FILED TO EXT. P5. EXHIBIT P7 PHOTOCOPY OF THE ORDER DATED 7.12.2017 IN IA NO. 3155/2017 IN OS NO. 536/2017. EXHIBIT P8 PHOTOCOPY OF THE JUDGMENT DATED 23.3.2020 IN CMA NO. 7/2018.