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BHAMINI v. STATE OF KERALA - CRP No. 523 of 2006  RD-KL 453 (10 August 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCRP No. 523 of 2006()
1. BHAMINI, D/O.BHARATHY NARAYANAN,
2. C.N. ASOKAN, S/O.BHARATHY NARAYANAN,
3. INDIRA C.N., D/O.BHARATHY NARAYANAN,
4. RAJESWARY LALAN,
1. STATE OF KERALA,
For Petitioner :SRI.MANUEL THOMAS
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.PADMANABHAN NAIR
O R D E R
K. PADMANABHAN NAIR,JC.R.P NO. 523 OF 2006-D
Dated this the 10th day of August 2006
ORDERThe decree holders in E.P 162/03 on the file of Sub Court, Kochi are the petitioners in this CRP. This Civil Revision Petition is filed challenging an order passed by the Court below dismissing an application filed by the petitioner to restore the E.P dismissed for default.
2.Certain lands belonging to the petitioners were acquired for public purpose. There was a reference to Sub Court, Kochi which was numbered as LAR 280/90. The reference was answered. Petitioners filed E.P 162/03. The E.P was dismissed for default. It was restored to file on 27.9.2005 and posted to 04.11.2005. On that day there was no representation for the decree holders. So the Execution Petition was again dismissed for default. Petitioners filed an application under Order 9 Rule 9 for restoration of the E.P. dismissed for default. The Court below held that the reason stated is the failure on the part of the advocate clerk who omitted to take note of the posting date of the case. But no affidavit was filed by the clerk of the advocate. It was further held that the affidavit was sworn to by the lawyer appearing for the parties and not by the parties and dismissed the application. C.R.P. NO. 523 OF 2006-D Challenging that order this writ petition is filed.
3.Learned counsel appearing for the petitioners has argued that the most competent person to file an affidavit explaining the failure of the decree holders to appear before the Court on which the case was posted is the lawyer. It is argued that the State has not filed any counter contenting that the grounds stated are false. Hence application was dismissed. Even though the provision of law stated in Order IX Rule 9 the court should have treated that application as one filed under Order XXI Rule 10l6. The lawyer filed an affidavit stating that his clerk omitted to take note of the posting date of the case and he failed to appear before the Court. The Court below ought to have accepted and acted upon that statement. The reasons stated by the learned Subordinate Judge for dismissing the restoration application is illegal and unsustainable. Court below failed to note that decree was passed long back and as early as on 31.8.92. By dismissing the E.P on the technical ground the party will be denied their amounts legitimately due to them. So the impugned order is liable to be set aside. In the result, the CRP is allowed. The order passed by the Court below dismissing E.A. 244/05 in E.P. 162/2003 is hereby set aside. C.R.P. NO. 523 OF 2006-D E.A is allowed. E.P. 162/2003 will stand restored to. Learned Government Pleader submits that this is the second time the E.P was dismissed for default. It is argued that the Government will have to pay interest at the rate of 15% for that period also. It is open to the Government to raise the contention that from the date on which E.P was dismissed till it was restored back to the file, the petitioner is not entitled to claim any interest because of their default. If such a contention is raised the Court below shall consider the same and pass appropriate orders. K. PADMANABHAN NAIR,
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