BABY Vs. SUKUMARAN

JUDGEMENT

(1.) THIS petition is filed under Article 227 of the Constitution to set aside the decree in O.S.No.861 of 2004 of the court of learned Additional Munsiff-II, Neyyattinkara and proceedings in E.P.No.330 of 2009 initiated for execution of that decree. Petitioner No.1 filed O.S.No.37 of 2005 for a decree for prohibitory injunction to protect what he claimed his possession of the suit property. Respondents filed O.S.No.861 of 2004, according to the petitioners in respect of the same property and arraying petitioner No.1 also as defendant. It is the case of petitioners that respondents filed an application for stay in O.S.No.37 of 2005 and for other reliefs. Learned counsel submitted that the said application was not allowed. Respondents however proceeded with the trial of O.S.No.861 of 2004 and adduce their evidence. Petitioner No.1 could not adduce evidence in that case as she was laid up due to cardiac arrest and her counsel filed memo seeking adjournment of the case on that ground. Request was not allowed, trial of O.S.No.861 of 2004 proceeded and a decree was passed which the decree holder is enforcing in E.P.No.330 of 2009. Now the contention of petitioner is that subject matter of the two suits are the same and that until disposal of O.S.No.37 of 2005 execution proceedings in E.P.No.330 of 2009 cannot proceed and since no decision is arrived at in O.S.No.37 of 2005 the decree in O.S.No.861 of 2004 and execution proceedings are null and void and are liable to be set aside. It would appear from the submission of learned counsel that the decree in O.S.No.861 of 2004 was passed ex parte.

(2.) HAVING heard counsel for petitioner and gone through the records I am not persuaded to think that jurisdiction under Article 227 of the Constitution is required to be used to quash proceedings of this nature when petitioner has other remedy available if the decree passed against him is ex parte. A decree lawfully obtained is executable so far as it stands. That O.S.No37 of 2005 is pending is no ground to interfere with the decree in O.S.No.861 of 2004, in this proceeding under Article 227 of the Constitution. I do not find any merit or substance in this petition. This petition is dismissed.