KC JOSE v. SAJAN J PYNUNKEL

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 ``` ## `OP(C) NO. 2872 OF 2023` ``` AGAINST THE ORDER IN EP 57/20009 IN OS NO.883 OF 2008 OF ASSISTANT ``` ``` SESSIONS COURT/SUB COURT, PERUMBAVOOR ``` ## `PETITIONER(S)/JUDGMENT DEBTOR:` ``` KC JOSE AGED 62 YEARS S/O MATHAI CHACKO, KIZHEKKEVATTOM, PALLIKAVALA, MUDICKAL PO, PERUMBAVOOR, PIN - 683547 BY ADVS. P.THOMAS GEEVERGHESE TONY THOMAS (INCHIPARAMBIL) E.S.FIROS AMRUTHA K.P. SRADHA MOHAN ``` ## `RESPONDENT( S )/DECREE HOLDER:` ``` SAJAN J PYNUNKEL AGED 63 YEARS S/O JOSEPH XAVIER, PYNUNKAL HOUSE, PLOT NO. E-31, CHANGAMPUZHA NAGAR PO, SOUTH KALAMASSERY, ERNAUKLAM, PIN - 682033 BY ADV SMITHA VARGHESE ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2024, ALONG WITH OP(C).2874/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C.) Nos.2872 & 2874 of 2023 ``` 2 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 ``` ## `OP(C) NO. 2874 OF 2023` ``` AGAINST THE ORDER IN EP 56/2009 IN OS NO.871 OF 2008 OF ASSISTANT SESSIONS COURT/SUB COURT, PERUMBAVOOR ``` ## `PETITIONER(S)/JUDGMENT DEBTOR:` ``` KC JOSE AGED 62 YEARS S/O MATHAI CHACKO, KIZHEKKEVATTOM, PALLIKAVALA, MUDICKAL PO, PERUMBAVOOR, PIN - 683547 BY ADVS. P.THOMAS GEEVERGHESE E.S.FIROS AMRUTHA K.P. TONY THOMAS (INCHIPARAMBIL) SRADHA MOHAN RESPONDENT( S )/DECREE HOLDER: ``` ``` SAJAN J PYNUNKEL AGED 63 YEARS S/O JOSEPH XAVIER, PYNUNKAL HOUSE, PLOT NO. E-31, CHANGAMPUZHA NAGAR PO, SOUTH KALAMASSERY, ERNAUKLAM, PIN - 682033 BY ADV SMITHA VARGHESE ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2024, ALONG WITH OP(C).2872/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C.) Nos.2872 & 2874 of 2023 ``` 3 **C.JAYACHANDRAN, J. ------------------------------------------O.P.(C.) Nos.2872 & 2874 of 2023 ------------------------------------------Dated this the 14[th] day of March, 2024** ## **JUDGMENT** The common judgment debtor in E.P. Nos.57/2009 and 56/2009, arising from O.S. No.883/2008 and O.S. No.871/2008, both of the Sub Court, Perumbavoor is the petitioner herein. In O.P.(C.) No.2872/2023, he is aggrieved by Exts.P4, P4(a) and P6 orders. Ext.P4 is an order, as per which, the above E.P., which was dismissed for default, was restored back to files. Ext.P4(a) condoned the delay in filing the application to restore the Execution Petition. Ext.P6 is an order dismissing an application to review Ext.P4 order. In O.P.(C.) No.2874/2023, also, similar orders were passed vide Exts.P4, P4(a) and P6. Aggrieved by the above referred orders, the common judgment debtor is before this Court. 2. Heard the learned counsel for the petitioner ``` O.P.(C.) Nos.2872 & 2874 of 2023 ``` 4 and the respondents. 3. Learned counsel for the petitioner would submit that no reason, whatsoever, is stated in Exts.P4 and P4(a) orders. In Ext.P6, although it is found that, by the application of Article 137 of the Limitation Act a period of three years is provided, still the delay in respect of the rest of the period is not seen considered and condoned. On such premise, orders are sought to be assailed. 4. Per contra, learned counsel for the respondent would submit that the application was filed under Order 9, Rule 9, which was obviously a mistake and the application ought to have been one under Section 151 of the Code of Civil Procedure (C.P.C.). It was further submitted that the executing Court has treated the application as one under Section 151 in the impugned Ext.P6 order. Learned counsel would submit that adequate reasons are stated in Ext.P2 application for condonation of delay. Therefore, the delay condoned vide Ext.P4(a) order, as also, the restoration of the E.P. back on files vide Ext.P4 order does ``` O.P.(C.) Nos.2872 & 2874 of 2023 ``` 5 not suffer from any legal infirmity, is the submission made. 5. Having heard the learned counsel appearing on both sides, this Court finds little merit in the Original Petition. It is true that Exts.P4 and P4(a) orders in both the Original Petitions were passed without stating any reason, wherefore, these orders should have been set aside, but for Ext.P6 order. However, Ext.P6 is an order passed in an application seeking review of Ext.P4 order, wherein the learned Sub Judge considered the attendant facts and circumstances, in detail. It was found that the E.P. happened to be dismissed only on the failure of the decree holder to take steps. It was also found, based on a decision of this Court in Chellamma v. Somakumari and Others [2015 (5) KHC 737], that Article 122 of the Limitation Act, which provides for thirty days to file an application for restoration will only apply to a suit or an appeal, or an application for review or revision. Insofar as an application to restore an Execution Petition, the ``` O.P.(C.) Nos.2872 & 2874 of 2023 ``` 6 residuary Article 137 applies, which provides for a period of three years. In the instant case, delay sought to be condoned is of 1120 days. The learned Sub Judge held that an application under Section 5 of the Limitation Act is quite maintainable and that the objections of the judgment debtor are only to be discarded. It is true that specific reasons are not stated in Ext.P6 as well, for condoning the delay of rest of the days, excluding the period of three years. However, this Court notice that in Ext.P2 application by the respondent herein for condonation of delay, sufficient cause has been shown. It is stated that the petitioner was hospitalised due to ‘santhivadham’. He underwent treatment in the year 2018. It was also stated that the petitioner has lost everything in the flood, which occurred in the year 2018 and his family was worsely affected. The petitioner was not in a position to move around due to paralysis and also on account of the Covid pandemic. It is on account of these reasons that the delay sought to be condoned. This ``` O.P.(C.) Nos.2872 & 2874 of 2023 ``` 7 Court notice that if the period of three years is excluded from the total delay of 1120 days, the actual delay is minimal, which is liable to be condoned for the reasons afore referred. 6. For the technical reason that, the above referred reasons have not been specifically addressed in Ext.P6 order in both the Original Petitions, this Court is not inclined to remit the matter to the executing Court for reconsideration afresh. A decree of the year 2009 is sought to be executed, which negates such a remand to the executing Court. In such circumstances, these Original Petitions fail and the same will stand dismissed. ## **Sd/-** ## **C. JAYACHANDRAN** ## **JUDGE** SKP/14-03 ``` O.P.(C.) Nos.2872 & 2874 of 2023 ``` 8 ## `APPENDIX OF OP(C) 2874/2023` ``` PETITIONER’S EXHIBITS: EXHIBIT P1THE TRUE COPY OF THE EXECUTION PETITION IN EP.56/2009 IN OS.871/2008 OF SUB COURT, PERUMBAVOOR EXHIBIT P2THE TRUE COPY OF EA NO. 71/2021 IN EP.56/2009 IN OS.871/2008 0F SUB COURT, PERUMBAVOOR EXHIBIT P2{A}THE TRUE COPY OF EA NO. 70/2021 IN EP.56/2009 IN OS.871/2008 0F SUB COURT, PERUMBAVOOR EXHIBIT P3TRUE COPY OF OBJECTION FILED BY THE PETITIONER EA.71/2021 IN EP.56/2009 IN OS.871/2008 OF SUB COURT, PERUMBAVOOR EXHIBIT P3[A]TRUE COPY OF OBJECTION FILED BY THE PETITIONER EA.70/2021 IN EP.56/2009 IN OS.871/2008 OF SUB COURT, PERUMBAVOOR EXHIBIT P4THE TRUE COPY OF THE ORDER EA.70/2021 IN EP.56/2009 IN OS.871/2008 OF SUB COURT, PERUMBAVOOR DATED.14.7.2022 EXHIBIT P4[A]THE TRUE COPY OF THE ORDER EA.71/2021 IN EP.56/2009 IN OS.871/2008 OF SUB COURT, PERUMBAVOOR DATED.14.7.2022 EXHIBIT P5THE TRUE COPY OF THE APPLICATION EA.76/2022 IN EP.56/2009 IN OS.871/2008 OF SUB COURT, PERUMBAVOOR EXHIBIT P5[A]TRUE COPY OF THE COUNTER AFFIDAVIT EA.76/2022 IN EP.56/2009 IN OS.871/2008 OF SUB COURT, PERUMBAVOOR EXHIBIT P6THE TRUE COPY OF THE ORDER IN EA 76/2022 IN EP 56/2009 IN OS.871/2008 DATED.20.1.2023 OF SUB COURT, PERUMBAVOOR RESPONDENT’S EXHIBITS: EXHIBIT R1(A)TRUE COPY OF THE MEDICAL CERTIFICATE IN LOWER COURT ISSUED FROM OUSHADHI AGENCY SAPTHARSHI AYURVEDA, KALAMASSERY DATED 9/11/2021 ``` ``` O.P.(C.) Nos.2872 & 2874 of 2023 ``` 9 ## `APPENDIX OF OP(C) 2872/2023` |`PETITIONER’S EXHIBITS:`|| |---|---| |`EXHIBIT P1`|`THE TRUE COPY OF THE EXECUTION PETITION`| ||`EP.57/2009 IN OS.883/2008 OF SUB COURT,`| ||`PERUMBAVOOR DATED.27.11.2009`| |`EXHIBIT P2`|`THE TRUE COPY OF EA NO. 73/2021 IN EP.57/2009`| ||`IN OS.883/2008 OF SUB COURT, PERUMBAVOOR`| ||`DATED.17.12.2021`| |`EXHIBIT P2{A}`|`THE TRUE COPY OF EA NO. 72/2021 IN EP.57/2009`| ||`IN OS.883/2008 OF SUB COURT, PERUMBAVOOR`| ||`DATED.17.12.2021`| |`EXHIBIT P3`|`TRUE COPY OF THE OBJECTION FILED BY THE`| ||`PETITIONER IN EA.73/2021 IN EP.57/2009 IN`| ||`OS.883/2008`<br>`OF `<br>`SUB`<br>`COURT, `<br>`PERUMBAVOOR`| ||`DATED.1.8.2022`| |`EXHIBIT P3[A]`|`TRUE COPY OF THE OBJECTION FILED BY THE`| ||`PETITIONER IN EA.72/2021 IN EP.57/2009 IN`| ||`OS.883/2008`<br>`OF `<br>`SUB`<br>`COURT, `<br>`PERUMBAVOOR`| ||`DATED.1.8.2022`| |`EXHIBIT P4`|`THE TRUE COPY OF THE ORDER EA.72/2021 IN`| ||`EP.57/2009 IN OS.883/2008 OF SUB COURT,`| ||`PERUMBAVOOR DATED.14.7.2022`| |`EXHIBIT P4[A]`|`THE TRUE COPY OF THE ORDER EA.73/2021 IN`| ||`EP.57/2009 IN OS.883/2008 OF SUB COURT,`| ||`PERUMBAVOOR DATED.14.7.2022`| |`EXHIBIT P5`|`TRUE COPY OF THE APPLICATION IN EA.77/2022 IN`| ||`EP.57/2009 IN OS.883/2008 OF SUB COURT,`| ||`PERUMBAVOOR DATED.1.8.2022`| |`EXHIBIT P5[A]`|`TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE`| ||`RESPONDENT IN EA.77/2022 IN EP.57/2009 IN`| ||`OS.883/2008`<br>`OF `<br>`SUB`<br>`COURT, `<br>`PERUMBAVOOR`| ||`DATED.17.9.2022`| |`EXHIBIT P6`|`THE TRUE COPY OF THE ORDER IN EA 77/2022 IN EP`| ||`57/2009 IN OS.883/2008 OF SUB COURT,`| ||`PERUMBAVOOR DATED.20.1.2023`| |`RESPONDENT’S EXHIBITS:`|| |`EXHIBIT R1(A)`|`TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED`| ||`FROM OUSHADHI AGENCY SAPTHARSHI AYURVEDA,`| ||`KALAMASSERY DATED 9/11/2021`| ``` TRUE COPY ``` ``` P.A. TO JUDGE ```