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2000 DIGILAW 670 (KER)

Raman Nair v. Sreedevi Amma

2000-12-15

M.R.HARIHARAN NAIR

body2000
ORDER M.R. Hariharan Nair, J. 1. This revision petition is filed in the name of Raman Nair, who is the plaintiff in O.S.No.64/84 of the Munsiff's Court, Ottappalam, which proceeding is now pending on the execution side in the same court. What is involved is the legality, regularity and propriety of the order passed by the execution court directing appearance of the said Raman Nair in court in person. 2. The respondents herein contended before the execution court that the petition was not maintainable in so far as the E.R is signed by an alleged power of attorney holder and that the said power of attorney has no validity, in view of the fact that the donor therein; Raman Nair died as early as in September, 1995. There was no satisfactory evidence available before the court, in spite of collection of oral evidence of the respective parties, to conclude that Raman Nair was still alive. It was in this situation that the court directed that Raman Nair should appear in court in person on 18-4-1999. 3. The learned counsel for the petitioner submits that though the court has the power to direct any part to present in person on any day, such a direction is not justified on the facts and circumstances of this case. It is pointed out that at every stage the respondents have been raising such contentions in order to defeat execution of the decree and that if the direction is to be complied with, Mr.Raman Nair, who has been in Malasia for the past several years and is aged about 95 years, will have to come all the way from Malasia to prove that he is alive and that this will cause serious inconvenience and monetary loss. The counsel further points out that the validity of the power of attorney was gone into, not only by the Trial Court but also by the appellate court at earlier stages and its validity has been upheld. 4. Here is a case where the respondents definitely allege that Raman Nair, who allegedly gave the power in favour of the signatory to the execution petition, died as early as in September, 1995. 4. Here is a case where the respondents definitely allege that Raman Nair, who allegedly gave the power in favour of the signatory to the execution petition, died as early as in September, 1995. It was for the court therefore to insist that proper evidence should be adduced to ensure that the donor in the alleged power of attorney is actually alive, although it was found under Issue No.3 of the preliminary judgment passed by the Trial Court that the power of attorney was valid. The appellate judgment dated 9-1-1995 also contains such a finding; but we are now at the question whether executant of the power of attorney died in September, 1995. For a decision on this aspect the earlier findings with regard to the validity of the power of attorney may not be sufficient. 5. As regards the power of the court to direct the plaintiff to appear in person, there is no serious challenge. Apart from the power in the proviso to O.3 R.1 invoked by the execution court, power is available with courts also under sub clause (b) and (c) of Sec.30 of the Code of Civil Procedure to issue summons to any person whose attendance is required or order any fact to be proved by affidavit. The question is only whether on the facts and circumstances of the case the direction is justified. 6. Even going by the age given in the power of attorney originally executed by Raman Nair, he was at least 95 years old when the direction in the impugned order was passed. The admitted case of both sides is that Raman Nair has been in Malasia for the past several years. In the circumstances, there is no doubt at all that the direction for personal appearance will cause him serious inconvenience and monetary loss. However, when there is absolutely no independent evidence produced before court to show that Raman Nair was alive in the recent past and when there is a definite allegation that he passed away in September, 1995, it cannot be said that the court was absolutely unjustified in making such a direction. 7. However, when there is absolutely no independent evidence produced before court to show that Raman Nair was alive in the recent past and when there is a definite allegation that he passed away in September, 1995, it cannot be said that the court was absolutely unjustified in making such a direction. 7. Mr.K.T. Sankaran, who appeared for the respondents, fairly conceded that in the nature of the case he was not insisting on personal appearance of Raman Nair and it will be sufficient, if reliable evidence is adduced before the execution court to show that Raman Nair is still alive so that the execution petition can be pursued. 8. Considering the said submission and also the facts and circumstances of the case, I feel it proper to give an alternative opportunity to Raman Nair to establish that he is alive and wants to pursue the execution petition. It is therefore directed that an opportunity be given to the revision petitioner to produce before the execution court an affidavit executed by the said Raman Nair and duly authenticated before the Officials-in-charge of the High Commission/Embassy in Malasia or through a Notary Public affirming his existence in Malasia. In case such an affidavit is produced before the execution court within a period of two months from the date on which a copy of this order is produced before the execution court, the said court shall not enforce the order for personal appearance of Raman Nair and instead, proceed with the execution petition on the assumption that the power of attorney of Raman Nair is still valid. If, however, such an affidavit, duly authenticated, is not produced, the court below will be justified in enforcing the direction for personal appearance, though with an appropriate modification in the date for appearance, and to proceed in accordance with law with regard to the continuance of the execution petition. Revision is disposed of as above.