DOUGLAS D SILVA Vs. MOHANA BALARAM

JUDGEMENT

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

(2.) Heard Sri.P.T.Mohan Kumar, learned counsel appearing for the petitioner/ defendant/ J.D. In the nature of the order that is proposed to be passed in this petition, notice to the respondent/ plaintiff /decree holder will stand dispensed with.

(3.) It is stated that the petitioner is the defendant in O.S.No. 498/2006 on the file of the Munsiff's Court, Kozhikode, which has been filed by the respondent herein/plaintiff. Ext.P-1 judgment was rendered by the Munsiff's Court, Kozhikode in O.S.No.498/2006 on 17.8.2006. Ext.P-2 is the decree rendered by the court below in the said O.S. The petitioner would state that the matter was settled between the parties quite long ago and still the respondent/plaintiff has proceeded further with the suit. It is further stated that presumably on account of that, the plaintiff had never set in motion execution proceedings in relation to Exts.P-1 and P-2 judgment and decree for about 11 years after the rendering of the judgment and decree. That it is only recently that the petitioner had received notice in respect of Ext.P-3 execution petition, E.P.No.33/2017 in O.S.No. 498/2006 on the file of the Munsiff's Court, Kalpetta. It is only then that the petitioner herein was alerted that the plaintiff is proceeding with the execution of the decree, upon which, the petitioner had filed appeal suit to Exts.P-1 and P-2 judgment and decree in O.S.No.498/2006 before the District Court, Kozhikode to impugn Ext.P-1 and P-2 judgment and decree in the O.S. and the said appeal suit was accompanied by I.A.No. 1799/2017 for condonation of delay and that a stay application was also filed along with the said appeal suit. It is the contention of the petitioner that Ext.P-3 execution petition has been instituted in flagrant violation of the provisions contained in Order 21, Rule 22 of the C.P.C. inasmuch as the mandatory notice as contemplated in that provision has not been issued in spite of the fact that the E.P. was instituted much beyond the two years from the decree as stipulated in that provision, etc. The petitioner's counsel would submit that the petitioner's is not now pressing the said contention based on the violation of Order 21, Rule 22 C.P.C. and would only seek a limited direction from this Court to ensure that the lower appellate court concerned (District Court, Kozhikode) passes orders disposing of the delay condonation application and the stay application filed in the appeal suit, without much delay and that until then, further proceedings in Ext.P-3 execution petition may be ordered to be kept in abeyance. It is further pointed out by Sri.P.T.Mohan Kumar, learned counsel appearing for the petitioner that these submissions are made by the petitioner reserving his liberty to challenge the legality and correctness of Ext.P-3 execution petition, at a later stage, if so warranted.