Ajmal vs A. Majeed Khan

T.R. Ravi, J

The original petition has been filed by the decree holders in a decree which is passed ex parte. Respondents are the judgment debtors. The property was directed to be delivered by the Execution Court, but the Amin had reported objection by the respondents. The decree holders filed Ext.P4 application to break open with Police Aid which has been adjourned. It is stated that the application filed by the petitioner was posted on 11 days between 14.08.2023 and 20.12.2023 but nothing transpired. The original petition has been filed in the above circumstances.

The respondents entered appearance and submitted that they have filed applications for setting aside the ex parte decree and the same were pending. This Court had called for a report from the concerned court and on 20.12.2023 a communication was addressed to the Registrar stating that E.A.Nos.569, 571 and 580 of 2023 are pending disposal and at least two months time will be required for disposal of the applications. On 05.01.2024 this court had passed a judgment directing the 1st Additional Sub Court, Kozhikode to consider and pass orders on E.A.Nos. 569, 571 of 2023 at the earliest, if possible, on the next posting date of 10.01.2024 itself. Thereafter, the respondents submitted that R.P.No.45 of 2023 is pending before the Court of Additional Sub Judge No.III for the last six months for consideration and if the delivery is ordered pending the said application they will be put to serious prejudice. This Court has recalled the order dated 05.01.2024 and posted the original petition for fresh hearing. Thereafter, a report was called for again from the III Additional Sub Judge and on 22.01.2024 a letter was addressed to the Registrar wherein it is stated that O.S.No.78 of 2022 was disposed on 17.11.2022 by an ex parte decree. The defendants had filed I.A.No.2 of 2023 with a delay condonation petition on 28.01.2023 for setting aside the ex parte decree. The I.A was posted for hearing on 13.04.2023 on which date it is stated that the petitioners were absent and there was no representation. In the above circumstances, the petition for setting aside ex parte decree was dismissed on 13.04.2023. Thereafter, the defendants filed RPIA 44 of 2023 and 45 of 2023 with delay condonation petitions on 25.08.2023 for restoring I.A.Nos.1 and 2 of 2023. It is stated that the Presiding Officer was transferred and there was no regular sitting in the court from 01.06.2023 and the same stands notified. It is also stated that an application for advancing the hearing on RPIA 44 of 2023 and 45 of 2023 was submitted and the same was posted for objection and hearing on 22.01.2024 and later on to 23.02.2024. When the above report was put to the counsel for the parties, the counsel for the respondents submitted that it will not be correct to say there was no representation. In the above circumstances, this Court had called for a report with a copy of the B diary relating to the case maintained in the III Additional Sub Court and the II Additional Sub Court, Kozhikode. It is seen that there was a posting as stated in the earlier report and there was no representation. Earlier the respondents have been directed to deposit an amount of Rs.14,00,000/- before the court below. On 31.01.2024 the counsel for the respondents submitted that they were able to raise only Rs.5,00,000/- and when the same was tendered, it was not accepted. Thereafter, this Court directed to deposit the amount on or before 09.02.2024. When the case is taken up today, it is submitted that an amount of Rs.14,00,000/-has been deposited on 09.02.2024. As seen from the report the case stands posted on 23.02.2024.

In the above circumstances, this original petition is disposed of directing the II Additional Sub Court, Kozhikode to take up RPIA 44 of 2023 and 45 of 2023 which has been placed before the court on the basis of advance petitions filed by the respondents and to hear and dispose of the same at the earliest, at any rate, within one month from the date of receipt of a copy of this judgment. The amount in deposit shall remain in deposit for the time being and after the disposal of RPIA 44 of 2023 and 45 of 2023 it is open to the plaintiff to file appropriate application for orders about the manner in which the amount in deposit should be dealt with. The steps for execution shall be kept in abeyance till the disposal of RPIA 44 of 2023 and 45 of 2023.