Ratheeshkumar P.K vs Sreedev K.K And Ors

The petitioner is the judgment debtor in E.P.No.48/2015 on the file of Munsiff Court,Kanjirapally. The execution proceedings were dismissed for default at a time when return of warrant was being awaited. On the ground that steps were not taken for issue of warrant, the court below dismissed the execution petition for default. It was later restored on the motion of the decree holder, who is the respondent herein. By the impugned order (Ext.P5) dated 03.12.20219, the execution petition was restored to file. The legality of Ext.P5 is challenged by the petitioner in this proceeding instituted under Article 227 of the Constitution of India.

I heard the learned counsel for the petitioner.

The learned counsel for the petitioner submits that the warrant was issued by the court below without hearing the judgment debtor. In fact, that contention does not arise for consideration in this proceeding inasmuch as by the impugned order, the execution proceedings were restored to file under the inherent power possessed by the court below. Whether he was given opportunity to contest the proceeding which resulted in issue of warrant is not a matter which could be adjudicated in this proceeding now.

After hearing the learned counsel for the petitioner, I do not find any illegality or impropriety in the order passed by the court below. Quite naturally when the execution petition has gone for default, the court below in exercise of the inherent power restored the proceeding for ends of justice. The order is unassailable under law.

In the result, original petition fails and it is dismissed.

All pending interlocutory applications will stand closed.