KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM Appeal No.168/03 JUDGMENT DATED: 09.02.2010 PRESENT:- JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K.ABDULLA SONA : MEMBER P.Hemachandran Nair, Advocate, Lekshmi Sadanam, : APPELLANT Near Edava Railway Station, Edava Village (By Adv.Sri.S.S.Kalkura) Vs Plavazhlkam Devi Temple Vilabhagam, Nedunganda Deasom, : RESPONDENT Vettoor Village, Trivandrum District. JUDGMENT JUSTICE SHRI.K.R.UDAYABHANU :PRESIDENT The appellant is the opposite party in O.P.142/01 in the file of CDRF, Thiruvananthapuram. The appellant is under orders to pay a sum of Rs.1,000/- towards damages with interest at 14.5% and also to pay Rs.500/- as costs. One of the members has dissented. It is the case of the complainant that the opposite party/advocate who was entrusted with the matter in the E.P. proceedings failed to file objection and hence the property happened to be delivered to the decree holder. It is mentioned in the complaint that in O.S.68/96 wherein the complainant was the defendant the Munsiff, Varkala decreed the suit. The appeal filed in Sub Court, Attingal was also dismissed. There was an E.P. filed as E.P No.32/2000 was before the Munsiff Court, Varkala. It was in the E.P. proceedings that the opposite party was entrusted with the Vakalath. The complainant filed second appeal in the High Court of Kerala. No stay order from the High Court could be obtained. It is also mentioned that subsequent to the delivery of the property the matter was entrusted with a new lawyer to whom as Rs.2,000/- has been paid. It is the allegation that the opposite party colluded with the decree holder and the property worth Rs.50,000/- was delivered on 16.03.01. The opposite party/appellant has contended that the delivery was executed as no stay order could be obtained from the High Court. It is also mentioned that he has not been paid any fee and only Rs.50/- was paid to his clerk. According to him he had informed the opposite parties through his clerk to come to his chambers for preparing the objection to the execution petition. But they did not appear and hence he could not file objection. The evidence adduced consists of Exts.P1 to P9 and Exts.D1 to D6. There was no representation for the complainant / respondent. It is pointed out that the condonation for delay petition was filed new lawyer and the same was also dismissed. Evidently the matter was pending in 2nd appeal before the High Court. The execution court cannot stay the proceedings in execution without direction of the appellate court. The Forum has found that there is default on the opposite party is not filing objection to the E.P. Essentially we find that the same would any difference. So far as the execution proceedings is concerned unless the complainant could obtain a stay order from the High Court the E.P will go on. There is no case that the counsel who appeared in the High Court did not pursue the matter. The version of the opposite party/appellant that the High court did not grant stay order stands not refuted. In the circumstances we find that the complainant could not establish the ground that it was on the account of the default of the appellant that the property happened to delivered. Hence the order of the Forum is set aside. This appeal is allowed. JUSTICE K.R.UDAYABHANU : PRESIDENT M.K.ABDULLA SONA : MEMBER Kb. | 
