Seena K. , D/O. Late C. K. Sukumaran v. Manoharan, S/O. Balakrishnan
2018-02-27
ALEXANDER THOMAS
body2018
DigiLaw.ai
JUDGMENT : The prayers in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India are as follows : “(i) to direct the court below to keep all further proceedings in I.A.No.2698 of 2003 in O.S.No.323 of 1999 on the file of the Principal Sub Judge, Thalassery, in abeyance, till the disposal of I.A.No.1732 of 2017 dated 1.12.2017 in I.A.No.2698 of 2003 in O.S.No.323 of 1999 ; (ii) to direct the court below to dispose of Exhibit-P5 application as expeditiously as possible or within a time to be stipulated by this Hon'ble Court enabling the petitioner to exercise the right of filing statutory appeal against the decree and judgment in O.S.No.361 of 2011 on the file of the Principal Sub Judge, Thalassery ; (iii) to direct the court below to issue certified and carbon copy of decree and judgment in O.S.No.361 of 2011 on the file of the Principal Sub Judge, Thalassery, as sought for vide C.A.No.2293 of 2017 and C.A.No.2300 of 2017 and (iv) to issue such other relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case so as to secure the ends of justice.” 2. Heard Smt.M.M.Deepa, learned counsel appearing for the petitioner. In the nature of the orders proposed to be passed in this petition, notice to the respondents will stand dispensed with. 3. It is stated that the petitioner is the prior assignee of the plaint schedule property involved in O.S.No.323 of 1999 on the file of the court of the Principal Sub Judge, Thalassery, and the petitioner had later filed an Original Suit, O.S.No.361 of 2011 before the said court, seeking a declaration that the abovesaid decree in O.S.No.323 of 1999 is not binding and is unenforceable against her and her properties. The said Original Suit, O.S.No.361 of 2011 was dismissed as per the judgment and decree dated 28.11.2017. It is also stated that immediately thereafter on 29.11.2017 the petitioner had filed application for grant of certified copy as well as carbon copy of the impugned judgment and decree in O.S.No.361 of 2011 as per Copy Applications, C.A.No.2293 of 2017 and C.A.No.2300 of 2017.
It is also stated that immediately thereafter on 29.11.2017 the petitioner had filed application for grant of certified copy as well as carbon copy of the impugned judgment and decree in O.S.No.361 of 2011 as per Copy Applications, C.A.No.2293 of 2017 and C.A.No.2300 of 2017. The first respondent herein was the plaintiff in O.S.No.323 of 1999 in which the petitioner’s father was the defendant and the first respondent herein is the sole defendant in O.S.No.361 of 2011 filed by the petitioner herein. Immediately after pronouncement of the judgment dated 28.11.2017 dismissing O.S.No.361 of 2011, the first respondent herein had proceeded with the Execution Petition in respect of the decree in O.S.No.323 of 1999. I.A.No.2698 of 2003 in O.S.No.323 of 1999 on the file of the Principal Sub Judge, Thalassery, has been instituted by the first respondent herein for production of the sale deed for execution of the ex-parte decree rendered in O.S.No.323 of 1999 against the petitioner's deceased father. It is brought to the notice that the petitioner’s father later died on 7.7.2004. Now the petitioner is the sole contesting respondent in the said I.A.No.2698 of 2003 in O.S.No.323 of 1999. The grievance of the petitioner is that though the petitioner had filed copy applications for the grant of the certified copy and the carbon copy of the impugned judgment and decree dated 28.11.2017 in O.S.No.361 of 2011, so far as the said copies have not been furnished to the petitioner and at the same time the very same court is proceeding with the execution of the ex-parte decree in O.S.No.323 of 1999. It is in the light of these aspects, the petitioner has filed the instant Original Petition (Civil) with the abovesaid prayers. 4. At the request of this Court, the Registry has secured telephonic information from the office of the Principal Sub Court, Thalassery, that the abovesaid certified copy and carbon copy could not be issued to the petitioner as the photocopy machine is not working and the certified copy as well as carbon copy has been issued for copy applications submitted only up to August, 2017 by that Court.
If that be so, it is not understandable to this Court as to why the same court has proceeded expeditiously with the execution steps in the ex-parte decree in O.S.No.323 of 1999, even though the petitioner had filed Exhibit-P5 application, I.A.No.1732 of 2017 dated 1.12.2017 in I.A.No.2698 of 2003 in O.S.No.323 of 1999 before the same court praying to keep in abeyance the execution proceedings in that regard until certified copies are made available to the petitioner in respect of the impugned judgment and decree dated 28.11.2017 in O.S.No.361 of 2011. The fair and proper course of action to be taken in such cases is for the court to give breathing time to the aggrieved party concerned to take steps to set in motion appropriate proceedings for challenging the judgment and decree concerned, more so, when the delay in the issuance of the certified copy is solely or mainly attributable to the court. If as a matter of fact the petitioner has made application for the grant of certified copy and carbon copy in respect of the impugned judgment and decree dated 28.11.2017 without any further delay and the delay was only on the part of the court in furnishing the said certified copy due to reasons like improper functioning of the photostat machine, etc. then fairness and justice demanded that the execution proceedings as in this case ought to have been kept in abeyance instead of driving a party like the petitioner all the way to come to this Court to file a petition under Article 227 of the Constitution of India. Litigations of this nature have been increasing and this Court cannot afford to close its door of justice on the mere ground that such grievances are merely of minor nature. As a matter fact it is these grievances of so called minor nature which may have significant or substantial impact on the fate of a litigation. True that there may be problems with the functioning of the photostat machine and other facilities. Even if inspite of the court taking necessary steps for rectifying such problems, there occurred delay, then the least that the court below could have done was to keep in abeyance the execution proceedings as in the instant case, instead of driving the litigants to come to the High Court.
Even if inspite of the court taking necessary steps for rectifying such problems, there occurred delay, then the least that the court below could have done was to keep in abeyance the execution proceedings as in the instant case, instead of driving the litigants to come to the High Court. If on the other hand, it was necessary to proceed with the Execution Petition, then the court below could have taken steps to issue the copies to the petitioner, out of turn. Orders could have been easily passed by the court below on application as in the nature of Exhibit-P5 in which case a litigant like the petitioner would not have been driven to the doors of this Court and that too for seeking the extraordinary discretionary remedy conferred under Article 227 of the Constitution of India. This Court would hope and trust that the subordinate courts concerned would imbibe the spirit and substance of these observations, so that a more prudent and fairer approach could alleviate most of these so called minor problems which really has greater impact and significance on litigants like the petitioner. If such prudent and wiser course of action is adopted by the courts below, then many a time litigations like the present one could be avoided which would result in reduction of number of such petitions now coming up before this Court under the visitorial jurisdiction of superintendence conferred under Article 227 of the Constitution of India. The Registrar (Subordinate Judiciary) attached to this Court is requested to examine matters of this nature and may issue necessary guidelines by way of circulars with the approval of the competent authority, etc. as deemed fit and proper, so that the gravity of the problem could be better dealt with by the courts below instead of driving the litigants to this Court, as in this case. 5. Accordingly, it is ordered in the interest of justice that the Court of the Principal Sub Judge, Thalassery, will take immediate steps to ensure the expeditious issuance of the certified copy and carbon copy of the impugned judgment and decree dated 28.11.2017 in O.S.No.361 of 2011 without any further delay, preferably within a period of 5 days from the date of production of a certified copy of this judgment.
Until such copies are furnished to the petitioner as directed herein above, all further steps in I.A.No.2698 of 2003 for execution of the ex-parte decree in O.S.No.323 of 1999 on the file of the Principal Sub Judge, Thalassery, will stand deferred. The petitioner will produce a certified copy of this judgment before the Court of the Principal Sub Judge, Thalassery, for necessary information. With these observations and directions, the Original Petition (Civil) will stand finally disposed of.