# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`**
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THE HONOURABLE MR.JUSTICE C.S.DIAS
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MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944
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## **`OP(C) NO. 1012 OF 2022`**
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AGAINST THE ORDER/JUDGMENT IN CMA 54/2017 IN OS 839/2000 OF
THE COURT OF THE IVTH ADDITIONAL DISTRICT JUDGE, THRISSUR
PETITIONER/S:
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RAPPAI
AGED 62 YEARS
S/O.VAREED, CHIRAYATH HOUSE, KOZHUKULLY P.O.,
KOZHUKULLY VILLAGE, THRISSUR TALUK, THRISSUR
DISTRICT, PIN - 680751
BY ADVS.
P.M.ZIRAJ
IRFAN ZIRAJ
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## **`RESPONDENT/S:`**
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KERALA DHANA VYAVASYA KURIES & LOANS PVT. LTD
AGED 53 YEARS
CHEMBUKAVU VILLAGE, SHORNUR ROAD, THRISSUR
REPRESENTED BY ITS CHAIRMAN, PETER JOSEPH, FATHER'S
NAME NOT KNOWN TO THE PETITIONER, PIN - 680020
BY ADVS.
Liji J Vadakkedom J
TOM E. JACOB(K/1144/2001)
REXY ELIZABETH THOMAS(K/635/1995)
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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(C) No.1012 of 2022
## **C.S DIAS,J. --------------------------OP(C) No.1012 of 2022 ----------------------------Dated this the 27[th] day of June, 2022.**
## **JUDGMENT**
The original petition is filed challenging the order in CMA No.54/2017 (Ext P15) of the Court of the IVth Additional District Judge, Thrissur.
2. The skeletal facts, relevant for the determination of the original petition are:
The petitioner is the judgment debtor in EP No.188/2013 in OS 839/2000 filed by the respondent. The respondent had filed Ext P1 plaint seeking a decree for recovery of money. The suit was allowed as per Ext P2 judgment. Ext P2 judgment and decree were put to execution by filing EP No.188/2013 (Ext P4). The petitioner objected to the execution petition by filing Ext P5 objection. The petitioner was advised that going by the attitude of the respondent, he would have to contest the suit on its merits. Therefore, he filed IA No.813/2017
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(Ext P6) to set aside the decree dated 20.12.2001 and IA No.814/2017 (Ext P7) to condone the delay of 5521 days in filing Ext P6 application. This Court, by Ext P8 judgment, directed the Trial Court to consider and dispose of Exts P6 and P7 within a time frame. The Trial Court by Exts P9 , P9A and P10 orders have dismissed the said applications. Challenging the same, the petitioner had filed Ext P11 appeal before the Appellate Court. However, the Appellate Court without appreciating the contentions raised by the petitioner, has by the impugned Ext P15 judgment dismissed the appeal. Ext P15 is wrong. Hence, the original petition.
3. Heard; Sri.P.M Ziraj, the learned counsel appearing for the petitioner and Sri.Liji.J.Vadakedom, the learned counsel appearing for the respondent.
4. The sole point that arises for consideration in the original petition is whether there is any error or illegality in Ext P15 judgment passed by the Appellate Court.
5. Sri.P.M Ziraj argued that the petitioner may be granted an opportunity to contest the suit on its merits.
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Undisputedly, the petitioner was set ex parte and his application to set aside the ex parte decree was dismissed by the Trial Court on hyper-technical grounds and the same mistake has been reiterated by the Appellate Court. Therefore, the original petition may be allowed and Ext P15 judgment and Exts P9 and P10 orders may also be set aside.
6. The above submission is countered by Sri.Liji.J.Vadakedom, who contended that the original petition is not maintainable since on an earlier instance, the petitioner had filed IA Nos.4131/2002 and 4136/2002 to set aside the ex parte decree and to condone the delay. Those applications were dismissed by the Trial Court as early as on 30.5.2003 as can be reflected from paragraph 5 of Ext P9A. This aspect was put to the petitioner during his cross-examination as PW1 and he has admitted the same. In view of the dismissal of the applications by the order dated 30.5.2003, the petitioner cannot reagitate the same issue. The learned counsel has relied on the decision of the Hon’ble Supreme Court in **Satyadhyan**
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**Ghosal and Ors vs Smt.Deorjin Debi and Anr [1960 KHC 705]** to canvass the position that the principles of res judicata are also applicable to applications that are dismissed and not challenged.
7. On a perusal of Ext P9A order, it is evident that the petitioner had filed IA Nos.4131/2002 and 4136/2002 to set aside the ex parte decree and to condone the delay of 254 days. Those applications were dismissed by the Trial Court on 30.5.2003. This order has not been challenged by the petitioner . Later, the petitioner by not revealing the above aspects has filed Exts P6 and P7 applications for the same reliefs covered by IA Nos. 4131/2002 and 4136/2002. The Trial Court on finding out the said aspect has dismissed the applications. The Appellate Court has confirmed the order passed by the Trial Court. I do not find any error or illegality in the courts below dismissing the petitioner’s present applications, which is admittedly filed without challenging the earlier order passed against him. There is no ground made out warranting interference by this Court under
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Article 227 of the Constitution of India. Without prejudice to the right of the petitioner to challenge the original decree that has been passed against him, the original petition is dismissed.
sd/-
Sks/27.6.2022
**C.S.DIAS, JUDGE**
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OP(C) No.1012 of 2022
## **`APPENDIX OF OP(C) 1012/2022`**
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PETITIONER EXHIBITS
Exhibit-P1TRUE COPY OF THE PLAINT IN O.S NO:
839/2000 ON THE FILE OF SUB COURT,
THRISSUR
Exhibit-P2TRUE COPY OF THE JUDGMENT IN O.S NO:
839/2000 ON THE FILE OF SUB COURT,
THRISSUR
Exhibit3TRUE COPY OF THE CERTIFICATE ISSUED TO THE
PETITIONER BY THE RESPONDENT DATED
27.6.2000 REGARDING THE DEDUCTION OF TAX
AT SOURCE
Exhibit- P4TRUE COPY OF THE EXECUTION PETITION NO.188
OF 2013 IN O.S NO: 839/2000 ON THE FILE OF
SUB COURT, THRISSUR
Exhibit-P5TRUE COPY OF THE OBJECTION SUBMITTED BY
THE PETITIONER IN THE ABOVE EXECUTION
PETITION
Exhibit- P6TRUE COPY OF THE I.A.NO.813/2017 IN
O.S.NO.839/2000 ON THE FILE OF THE SUB
COURT, THRISSUR
Exhibit P7TRUE COPY OF THE I.A.NO.814/2017 IN
O.S.NO.839/2000 ON THE FILE OF THE SUB
COURT, THRISSUR
Exhibit- P8TRUE COPY OF THE JUDGMENT OF THIS
HONOURABLE COURT DATED 23.2.2017 IN O.P.
(C)NO.697/2017
Exhibit- P9TRUE COPY OF THE ORDER DATED 18.3.2017 IN
I.A.NO.813/2017 IN O.S.NO.839/2000 ON THE
FILE OF PRINCIPAL SUB COURT, THRISSUR
True copy of entire pages of order dted
Exhibit P9A18.3.2017 in A 813/2017 in
Exhibit- P10TRUE COPY OF THE ORDER DATED 18.3.2017 IN
I.A.NO.814/2017 IN O.S.NO.839/2000 ON THE
FILE OF PRINCIPAL SUB COURT, THRISSUR
Exhibit- P11TRUE COPY OF THE C.M.A.NO.54/2017
SUBMITTED BY THE PETITIONER BEFORE THE
DISTRICT COURT, THRISSUR
Exhibit- P12TRUE COPY OF I.A.NO.3248/2017 IN
C.M.A.NO.54/2017 SUBMITTED BY THE
PETITIONER BEFORE THE DISTRICT COURT,
THRISSUR
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Exhibit P13TRUE COPY OF THE ORDER DATED 12.11.2021 IN
E.P.NO.188/2013 IN O.S.NO.839/2000
Exhibit P14TRUE COPY OF JUDGMENT OF THIS HONOURABLE
COURT DATED 14.12.2021 IN OPC NO.2419 OF
2021
Exhibit P15TRUE COPY OF THE JUDGMENT DATED 27.1.2022
IN C.M.A.NO.54 OF 2017 ON THE FILE OF THE
FOURTH ADDITIONAL DISTRICT JUDGE, THRISSUR
```
