CHANDRIKA DEVI RENJINI Vs. SARALAMMA @ SARALA DEVI

JUDGEMENT

(1.) Judgment debtor No. 2 in E.P. No. 348 of 2009 in O.S. No. 279 of 2006 of the court of learned Munsiff, Neyyattinkara is the petitioner before me. According to the petitioner, respondent No. 1 has obtained an exparte decree against petitioner and others on 20.08.2010 declaring her (alleged) right of easement over plaint C schedule and granting a decree for removal of the obstruction from the disputed way. As per the decree, respondent No. 1 has been permitted to remove the obstruction. That decree was put into execution. In the meantime petitioner filed I.A. No. 103 of 2010 on the trial side to set aside the exparte decree. But that application was posted wrongly with the execution petition and numbered as E.A. No. 24 of 2010. Learned Counsel states that on the mistake being pointed out, executing court dismissed that application. Petitioner then filed I.A. No. 4956 of 2010 again on the trial side to set aside the exparte decree and that application is pending consideration of the learned Munsiff. Petitioner also filed E.A. No. 25 of 2010 for stay of execution proceedings (until disposal of the application to set aside the exparte decree). Petitioner/judgment debtor No. 2 was heard on that application but, executing court has dismissed that application as if there was no representation for petitioner/judgment debtor No. 2 and hence E.A. No. 25 of 2010 was dismissed for default. That order is under challenge in this Writ Petition. There is also a request for stay of execution of the decree (exparte).

(2.) As an application for setting aside the exparte decree is pending on the trial side, it was open to the petitioner to seek stay of execution proceedings on the trial side. If as contended by learned Counsel there was no default on the part of the petitioner on E.A. No. 25 of 2010 and that application has been wrongly dismissed for the said reason notwithstanding that petitioner was heard on that application, remedy is by way of review before the executing court and if petitioner is also admitting that the said application has been dismissed for default, still her remedy is before the executing court in the form of an application for restoration. There is no reason why this Court should interfere in the matter. Hence without prejudice to the right of petitioner to seek appropriate relief if she is otherwise entitled as aforesaid, this Writ Petition is closed.