Subramanian vs Thankamani

C.S.Dias, J

The original petition is filed to direct the Court of the Subordinate Judge, Irinjalakuda to consider and dispose of I.A.No.1/2021 (Ext.P3) and I.A.No.2/2021 (Ext.P4) in A.S.No.11/2021, within a time frame.

The petitioners are the appellants in the above appeal, which is filed against the respondents and challenging the judgment and decree passed by the Court of the Additional Munsiff, Irinjalkuda in O.S.No.610/2010. The petitioners contend that after the passing of Ext.P1 and P1(a) judgment and decree, they had entrusted the file with a Lawyer to file the appeal. The Lawyer assured them that the appeal was filed and an order of stay was passed. Later, they came to learn that the Lawyer was undergoing treatment for renal failure. Thus the petitioners took back the file from the said Lawyer and have now filed Ext.P2 appeal. They have also filed Exts.P3 and P4 applications to stay the impugned judgment and decree, and also to condone the delay in filing the appeal. However, since service of notice on the 15th respondent is not completed, who is said to be employed abroad, Exts.P3 and P4 are not being considered. In the meantime, the respondents are hastily proceeding with the execution petition. If the respondents go ahead with the execution, the appeal would be rendered infructuous, which in turn will casue them severe prejudice. Hence, the original petition.

Pursuant to the order dated 08.03.2022 passed by this Court, the Court of the Munsiff, Irinjalakuda has by communication dated 11.03.2022, informed this Court that the respondents have filed I.A.No.10095/2015 to pass a final decree in the suit. The case is posted for the Commission Report. The learned Munsiff has sought one month to dispose of the final decree application.

Heard; Sri. Achuth Kylas, the learned counsel appearing for the petitioners and Smt.Maya M., the learned counsel appearing for the respondents 1 to 14.

The learned counsel appearing for the respondents 1 to 14 submits that since the 15th respondent is employed abroad, she cannot enter appearance for him. Thus, in view of the limited relief I propose to pass, I dispense with notice to the 15th respondent.

Admittedly, the petitioners have filed Ext.P2 appeal before the Appellate Court challenging Exts.P1 and P1(a) judgment and decree. Whatever be the merits or the reasons stated in the affidavit filed in support of Ext.P4 application, to condone the delay in filing the appeal, the application has to be considered by the Appellate Court on its merits. Undisputedly, Ext.P4 application is not being considered because the 15th respondent cannot be served with notice. Taking into consideration, the peculiar facts and circumstances of the case and also that the respondents are substantially represented in the appeal, I am of the firm view that the petitioners' indefeasible right cannot be defeated, merely for the reason that he cannot be served with notice as he is employed abroad. Therefore, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India and to do substantial justice to the parties, I dispose of this original petition as follows:

(i) As the respondents 1 to 14 have entered appearance in A.S.No.11/2021 of the Court of the Subordinate Judge, Irinjalakuda, and there is substantial representation for the 15th respondent, I dispense with notice to the 15th respondent in Exts.P3 and P4 application. The respondents may file their counter affidavit, if any, to Exts.P3 and P4 applications within two weeks from the date of receipt of a certified copy of this judgment.

(ii) Immediately on the counter affidavits being filed or after the expiry of the period of two weeks, the Appellate Court shall consider Exts.P3 and P4 in accordance with law, and pass orders on the applications within a further period of two weeks after the time period fixed in condition No.2 has expired, without the insistence of service of notice on the 15th respondent in Exts.P3 and P4.

(iii) Until such time orders are passed on Exts.P3 and P4 applications, all further proceedings in I.A.No.10095/2015 in O.S.No.610/2010 of the Court of the Additional Munsiff, Irinjalakuda shall be kept in abeyance.

The original petition is ordered accordingly.