VIMALA Vs. VIJAYAN S/O ANANTHASIVAN

JUDGEMENT

(1.) The plaintiffs/petitioners are before this Court aggrieved by the order of the learned Munsiff, Kochi in I.A. No.1475/2010 in O.S.No.7/2000. The application is one filed under Order IX, Rule 13 for setting aside the exparte decree passed in the suit on 05.02.2000. The defendant raised a contention that the power of attorneys produced for the plaintiffs in the suit and also the execution petition before the Court could not have been accepted as those were insufficiently stamped and that the Court went wrong in decreeing the suit, exparte. It was contended for the defendant that since he was exparte, no objection could be raised regarding the validity of the power of attorneys. On examination of the power of attorneys by the Court, those were found to be insufficiently stamped and hence all the power of attorneys relied upon by the plaintiffs were directed to be impounded and penalty imposed. The plaintiffs in the suit are aggrieved by the impugned order and have come up before this Court.

(2.) It is prayed that the order of the Court below in ordering stamp duty under Article 44(f) of the Kerala Stamp Act ('Act', for short) is not sustainable. In case there was any deficiency in the fee payable under Section 19 of the Act, the difference alone could be directed to be paid. Moreover, sitting on the original side, it was not proper on the part of the court below to call for the power of attorneys produced in the execution proceedings. It is therefore, prayed that the impugned orders at Exts.P5 and P6 may be set aside. It is further prayed for a declaration that the Court is not in seizin of the proceedings to set aside the exparte decree dated 05.02000 in O.S.No.7/2000 since the proceedings stood abated due to death of the 3rd respondent in I.A. No.1475/2010 filed to set aside the exparte decree. It is also prayed that the penalty amount illegally collected from the petitioner on 05/07/2013 in respect of Exts.P3 and P4 may be ordered to be refunded.

(3.) The question for determination before this Court is whether the power of attorneys executed by the plaintiffs produced in the suit can be ordered to be impounded and penalty directed to be paid and whether Exts.P5 and P6 orders are liable to be set aside.