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MADATHIPARAMBIL RAMACHANDRAN versus PANNIKKANDATHIL KUNHIKAMU HAJI

High Court of Kerala

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MADATHIPARAMBIL RAMACHANDRAN v. PANNIKKANDATHIL KUNHIKAMU HAJI - WP(C) No. 17727 of 2006(I) [2007] RD-KL 865 (11 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 17727 of 2006(I)

1. MADATHIPARAMBIL RAMACHANDRAN
... Petitioner

Vs

1. PANNIKKANDATHIL KUNHIKAMU HAJI,
... Respondent

For Petitioner :SRI.T.KRISHNAN UNNI

For Respondent :SRI.TOM K.THOMAS

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :11/01/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... W.P.(C)No.17727 OF 2006 ............................................

DATED THIS THE 11TH DAY OF JANUARY, 2007



JUDGMENT

Respondent is the decree holder in O.S.233 of 2002. The judgment debtor is Madathi Parambil Chandran, S/o. Madathi Parambil Sekaran. Respondent filed E.P.175 of 2003 for realisation of the decree debt by attachment and sale of the properties. In the execution petition, petitioner, through Power of Attorney holder, filed an application to allow him to contest the case through the Power of Attorney holder. The Power of Attorney produced along with the petition shows that it was executed by Madathi Parambil Ramachandran and not Chandran. On that ground, executing court returned the petition. The wife of the petitioner then filed E.A.316 of 2004, a claim petition under Rule 58 of Order XXI contending that she is the wife of petitioner and the name of her husband is Ramachandran and not Chandran as shown in the decree and the attached property belongs to petitioner and he was working abroad and the property cannot be proceeded for realisation of the decree debt. The claim petition WP(C)17727/2006 2 was subsequently dismissed under Ext.P3 order. Though petitions filed through the Power of Attorney were returned on 29.11.2004, this petition under Article 227 of Constitution of India was filed only on 10.7.2006 contending that the decree was exparte and was not given opportunity to contest the case.

2. Learned counsel appearing for petitioner and respondent were heard. Learned counsel appearing for the petitioner argued that petitioner, against whom a decree was obtained in the name of Chandran, was not allowed to contest the execution petition and his property is being sold for realisation of the decree debt and in such circumstances, an opportunity has to be granted to the petitioner to appear in the execution petition and to raise his contentions. It was pointed out that as per order dated 10.7.2006, petitioner has already remitted half of the decree amount. Learned counsel appearing for respondent argued that though the petition filed through the Power of Attorney holder was returned in November 2004, it was not challenged or petitioner did not take any steps so far and the attempt is only to protract the execution proceedings. It was also pointed out that as seen from Ext.P1, vakalath filed before the executing court on WP(C)17727/2006 3 27.11.2004, which was presented along with the petition which was returned, petitioner signed the vakalath as Chandran and therefore there is no bonafides in the contention that the name of petitioner is not Chandran but Ramachandran. Whatever it be, that is a matter to be decided by the executing court. In the interest of justice, petitioner is to be permitted to raise his contentions in the execution petition before his property is sold. The original petition filed by the petitioner through power of attorney holder were not received by the executing court, on the ground that name of the judgment debtor differs from the name shown in the Power of Attorney. Petitioner is now available in India. He is at liberty to file an application before the executing court to get himself impleaded in the E.P if his case is that respondent in the E.P is any other person. If such an application is filed, executing court is to allow him to raise valid contentions in E.P.175 of 2003 and to pass appropriate orders in accordance with law.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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