IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10433 of 2010(O)
1. M.I.DAVOOD, S/O.MURUKKUMCHERIL ISMAIL,
... Petitioner
Vs
1. MATTANCHERRY JEEVA MATHA CHURCH,
... Respondent
For Petitioner :SRI.M.V.BOSE
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :26/03/2010
O R D E R
P.BHAVADASAN, J.
————————————-
WP(C) No.10433 of 2010-10
————————————-
Dated 26th March 2010
Judgment
In this Writ Petition filed under Article 227 of the
Constitution of India, the reliefs sought are as follows :
“i. to issue a writ of mandamus compelling the District Court,
Ernakulam to issue an order as prayed for in Ext.P9.
ii. to issue a direction to the respondent as not to proceed
with execution of the decree in OS No.235/94 including A
schedule and B schedule in it.
iii. to pass any other order or direction as this Hon’ble Court
may deem fit and proper in the nature and circumstances of
the case.”
2. The petitioner claims to be in possession and
absolute ownership of 37 cents of land in Survey No.1269
of Mattancherry village and a building thereon, which has
been described as A schedule in OS No.6/10 before the
Sub Court, Kochi. A copy of the plaint in the suit is
produced as Ext.P1. ‘A’ schedule property in Ext.P1 is a
Government puramboke land. The District Collector,
WPC 10433/10 2
Ernakulam issued Ext.P2 notice dated 12.10.1999 to the
petitioner directing him to show cause as to why ‘A’
schedule property should not be taken back by the
Government. The petitioner moved the Sub Court, Kochi
by filing OS No.6/10 along with an application for temporary
injunction. But, no order was granted in the said
application. Therefore, he moved this Court by filing WPC
No.2591/10 which was disposed of by Judgment
dt.27.1.2010, staying all further proceedings. A copy of the
said Judgment is Ext.P7. The petitioner filed an IA seeking
interim injunction. But, the trial court was not impressed
with the case put forward by the petitioner and without
adverting to the directions contained in Ext.P7, dismissed
the IA, stating that the petitioner is not entitled to get any
temporary injunction. Ext.P8 is the copy of the said order.
The matter was carried in appeal. Along with the appeal,
the petitioner also filed IA No.1095/10, restraining the
respondent from obstructing the petitioner from using Plaint
B schedule property. The grievance of the petitioner is that
WPC 10433/10 3
if the IA is not taken up and orders passed thereon, he will
have to face threat of dispossession and the whole issue
will become infructuous. Therefore, he prays for a direction
to the District Court, Ernakulam to dispose of Ext.P9
application expeditiously.
3. In the nature of the order that is proposed to
be passed in this Writ Petition, it is felt that it is
unnecessary to issue notice to the respondent. While there
is some justification in the complaint raised by the
petitioner that the IA filed by him is not being disposed of,
there is no merit in his contention that till such time
execution proceedings in the suit shall be stayed. If as a
matter of fact, the petitioner is not a party to the suit, the
decree in the suit cannot be binding on him. If it is put in
execution, the petitioner is at liberty to invoke the remedies
available to him. Whatever that be, all these are matters to
be considered by the Appellate Court while disposing of the
IA. This Writ Petition is disposed of directing the District
Court, Ernakulam to take up Ext.P9 IA, i.e., IA 1095/10 in
WPC 10433/10 4
CMA 18/10 forthwith and dispose of the same in
accordance with law as expeditiously as possible, at any
rate, before the midsummer vacation commences.
P.BHAVADASAN, JUDGE
sta
WPC 10433/10 5