Neeliyath Chandhini and C.P. Rajagopalan vs Neeliyath Gopalakrishnan Nambiar, Neeliyath Omana Nambiar and Neeliyath Chandrangathan Nambiar

Thomas P. Joseph, J.—Judgment debtors are petitioners in E.P. No. 295 of 2007 in O.S. No. 343 of 2002 of the court of learned Munsiff, Kannur. On execution petition evidence was being recorded and while so on 08- 09-2009 it was dismissed for default. Respondents filed E.A. No. 427 of 2009 for restoration on which paper publication was taken out against petitioners for appearance on 26-06-2010. Since that day happened to be a harthal day petitioners were set ex parte and the restoration petition was allowed. Petitioners filed E.A. No. 439 of 2010 to set aside the ex parte order. That application was allowed on condition of payment of cost of Rs. 1,000/-. That order is under challenge. Learned Counsel has raised two contentions; firstly, that when respondents were absent E.P was dismissed for default and later restored, executing court did not award cost while it came to the petitioners cost of Rs. 1,000/- was awarded.. Secondly, it is contended that when restoration application was allowed petitioners were entitled to get notice on execution petition and without such notice they could not have been set ex parte.

On going through the order under challenge and hearing learned Counsel I am unable to accept either of the contentions. Allowing application on cost is a matter within the discretionary power of the court and except when that discretion is exercised in an arbitrary manner, interference is not called for. The question under what circumstances execution petition was dismissed for default, and it was restored may be different from the circumstance under which petitioners were set ex parte and the ex parte order was later set aside. So far as the second contention is concerned, it is not as if petitioners were not served on the execution petition before it was dismissed for default. They were served and parties were participating in the evidence. It is while so, that execution petition was dismissed for default. Therefore, when restoration application was allowed with notice, a further notice on the execution petition was not required. In their absence executing court rightly set petitioners ex parte on the execution petition which has been set aside but directing payment of cost of Rs. 1,000/-. I do not find reason to interfere. Petitioners are granted three weeks time from this day to comply with the order passed by court below.

Writ petition is disposed of as above.