Monson Thomas @APPELLANT@Hash Lailimma Sibichen

The main prayers in this Original Petition (Civil) filed under the enabling provisions in Article 227 of the Constitution of India are as follows:

"I. To call for the records in Exhibit P1 appeal pending before the District Court, Kottayam and direct the District Court, Kottayam to hear Exhibit P2 and P3 petitions within such period as directed by this Hon'ble Court.

II. To direct the Munsiff's Court, Changanacherry to keep proceedings in Exhibit P4 E.P. in abeyance till Exhibit P2 and P3 petitions are heard by the District Court, Kottayam."

Heard Sri.K.Shaj, learned counsel for the petitioner and Sri.R.Sridev, learned counsel for the respondent.

The petitioner had earlier suffered an ex-parte judgment and decree dated 12.7.2016 in O.S.No.364/2014 filed by the respondent herein/plaintiff in which the petitioner was arrayed as defendant therein. Being aggrieved by the said ex-parte decree, the petitioner had filed application to set aside the said impugned ex-parte decree as well as the application to condone the delay in filing the said application to set aside the ex-parte decree and those applications were dismissed by the trial court on 12.3.2017. Being aggrieved by such dismissal the petitioner had later instituted Ext.P-1 C.M.A.No.53/2017 before the District Court, Kottayam. Along with Ext.P-1 appeal memorandum, the petitioner has also filed Ext.P-2 I.A.No.1350/2017 in the C.M.A to condone the delay in filing the said appeal as well as Ext.P-3 I.A.No.1351/2017 in the said C.M.A to grant stay of operation and execution of the impugned ex-parte decree. The present grievance of the petitioner is that though Exts.P-2 and P-3 applications have been filed as early as on 14.7.2017, the same are still pending consideration before the lower appellate court concerned and orders have not been passed on those I.As after hearing both sides. It is further stated that inspite of non-consideration of those I.As, the Execution Court is proceeding with the ex-parte decree. Accordingly, Sri.K.Shaj, learned counsel for the petitioner submits that the limited direction sought for by the petitioner is only that this Court may given necessary direction to the lower appellate court (District Court, Kottayam) to ensure that orders are passed on Exts.P-2 and P-3 I.As for delay condonation as well as interim stay, after hearing both sides and that until orders are passed on those I.As by the lower appellate court, further steps in execution proceedings may be ordered to be kept in abeyance.

At the request of this Court, the Registry has secured telephonic information from the lower appellate court concerned, wherein it is informed that Exts.P-2 & P-3 I.As in C.M.A.No.53/2017 was recently posted to 28.2.2018 and that it is now posted to 5.4.2018 for return of notice. This court had queried with Sri.R.Sridev, learned counsel for the respondent as to whether the counsel appearing for that party before the Execution Court could without further delay takes notice on Exs.P-2 and P-3 I.As so that hearing and disposal of of those I.As could be expedited instead of keeping the matter pending. Sri.R.Sridev, learned counsel for the respondent submits on the basis of instructions of his party that the counsel appearing for his parties before the Execution Court will immediately take steps to ensure that service is completed on Exts.P-2 & P-3 I.As and counter/written objection will be filed within the next 10 days, etc. The said fair submission made by the learned counsel for the respondent is placed on record and appreciated.

In the light of the above facts and and circumstances, it is ordered that the lower appellate court concerned (District Court, Kottayam), will take up Exts.P-2 & P-3 I.A.Nos.1350 & 1351 of 2017 in C.M.A.No.53/2017 without much delay and after affording a reasonable opportunity of being heard to both sides will pass orders thereon preferably within a period of 3-4 weeks from the date of production of a certified copy of this judgment. To facilitate compliance of this direction, the lower appellate court will advance the case immediately on receipt of a certified copy of this judgment and should enable the respondent to file counter/written objections within 10 days therefrom and should should see that the I.As are disposed of as directed hereinabove. Only for the preservation of the subject matter of the lis, it is ordered that further steps in relation to Execution Proceedings arising out of the impugned ex-parte decree dated 12.7.2016 in O.S.No.364/2014 on the file of the Munsiff's Court, Changanacherry, will stand deferred.

The petitioner will produce a certified copies of this judgment before the lower appellate court as well as the Execution Court for necessary information.With these observations and directions, the Original Petition (Civil) will stand finally disposed of.