The petitioner, who is the decree holder in E.P.No.121/2010 in O.S.No.92/1998 on the file of Sub Court, Mavelikkara, is before this Court in this original petition filed under Article 227 of the Constitution of India seeking an order to set aside Ext.P6 order dated 11.4.2013 of the said court, whereby the execution petition was dismissed for non-compliance of the order dated 27.6.2012 of the execution court in spite of repeated adjournments.
2. On 28.6.2013, when this original petition came up for admission, this court admitted the matter on file and issued notice to the respondents.
3. Heard the learned counsel for the petitioner/decree holder and also the learned counsel for the respondents/ judgment debtors 2 to 5, who are the legal heirs of the original defendant/1st judgment debtor.
4. The sole issue that arises for consideration in this O.P.(C)No.2242 of 2013 :-2-:
original petition is as to the legality or otherwise of Ext.P6 order passed by the execution court.
5. As discernible from Ext.P6 order, the court below dismissed the execution petition since the petitioner/decree holder failed to comply with the order dated 27.6.2012, whereby he was directed to produce fresh proclamation showing encumbrance No.1 in the draft proclamation. As evident from Ext.P7 'B diary', after the said order dated 27.6.2012, the execution petition was posted on 25.7.2012, 8.10.2012, 2.2.2013 for fresh proclamation and thereafter on 11.4.2013, the execution petition was dismissed by Ext.P6 order since the petitioner/ decree holder failed to comply with the direction contained in the order dated 27.6.2012.
6. During the course of arguments, the learned counsel for the petitioner/decree holder would contend that there was no necessity for the decree holder to produce fresh proclamation showing encumbrance No.1 in the draft proclamation. The said contention cannot be accepted at this point of time, since the petitioner/decree holder has not moved any application before the execution court seeking an order to revive its earlier order O.P.(C)No.2242 of 2013 :-3-:
dated 27.6.2012. Once the said order stands, it is for the petitioner/decree holder to comply with the mandate of that order.
7. Considering the facts and circumstances of the case, I deem it appropriate to grant the petitioner one more opportunity to comply with the direction contained in the order dated 27.6.2012 of the execution court. The learned counsel for the petitioner/decree holder would submit that the decree holder shall produce a fresh proclamation showing encumbrance No.1 in the draft proclamation, in terms of the order dated 27.6.2012, for which, he may be granted a reasonable time.
8. Having considered the rival contentions, this original petition is disposed of setting aside Ext.P6 order passed by the execution court, thereby restoring E.P.No.121/2010 in O.S.No.92/1998 on file. The petitioner shall produce a fresh proclamation showing encumbrance No.1 in the draft proclamation, as ordered by the execution court in its order dated 27.6.2012, within one month from the date of receipt of a certified copy of this judgment. If such draft proclamation is produced within the time limit stipulated as above, the execution O.P.(C)No.2242 of 2013 :-4-:
court shall proceed with the execution petition further. In case of any failure on the part of the petitioner to produce such draft proclamation within the said time limit, the execution petition will stand dismissed.
Both parties shall appear before the execution court on 16.11.2017.
Original petition is disposed of as above.
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ANIL K.NARENDRAN JUDGE ami/7.10.17 //True copy// P.A.to Judge