Chekkumarakarakath Musthafa vs Puthiyakath Nalakath Kunhimoosa on 24 January, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 2830 of 2007(J)


1. CHEKKUMARAKARAKATH MUSTHAFA,
                      ...  Petitioner

                        Vs



1. PUTHIYAKATH NALAKATH KUNHIMOOSA,
                       ...       Respondent

                For Petitioner  :SRI.B.S.SWATHY KUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :24/01/2007

 O R D E R
                   M.SASIDHARAN NAMBIAR,J.



                   ------------------------------------------

                    W.P.(C) .NO. 2830  OF  2007

                   ------------------------------------------


                    Dated     24th   January   2007




                            J U D G M E N T

                 Petitioner   is   8th            judgment   debtor   in



O.S.168/93     on   the   file   of   Munsiff   court,   Tirur   and

respondent is the decree holder. As per final decree

first respondent filed E.P.33/06 for getting the

property allotted to him. Petitioner filed E.A.204/06

before executing court for an order of stay,

contending that he had filed an appeal before Sub

court, Tirur, but because of the delay in filing the

appeal he could not get an order of stay and therefore

to enable petitioner to get an order of stay from the

appellate court, execution is to be stayed. Under

Ext.P1 order, learned Munsiff granted an order of stay

for two months. This petition is filed under Article

227 of Constitution of India, when under Ext.P3

further extension of stay was not granted by executing

court.

2. Argument of learned counsel appearing for

petitioner is that though an appeal was filed with an

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application under Section 5 of Limitation Act, to

condone delay, as notice on respondents 4,6 and 7

could not be served, delay petition was not heard and

paper publication was ordered and he had already

effected paper publication and appeal stands posted to

20/2/2007 and therefore petitioner is not in a position

to get an order of stay before condoning delay and in

meanwhile, if property is to be delivered in the

execution petition, the very purpose of the appeal will

be defeated and in such circumstance, execution of the

decree may be stayed.

3. Question whether appeal is to be admitted or

not, is to be decided by the Sub court and that too

after considering the question whether there is

sufficient cause to condone the delay in filing the

appeal. As per order dated 19/8/2006, executing court

granted two months time to petitioner to get an order

of stay from appellate court. Even though paper

publication has been effected, according to petitioner,

he did not get the order from appellate court as the

application for condoning the delay was not heard.

Petitioner is not entitled to get order of stay in the

guise of pendency of an application under Section 5 of

Limitation Act. If petitioner is so advised, petitioner

3

can file an application for advancing the hearing of

the application under Section 5 of Limitation Act,

pending before Sub court, Tirur and get an order in the

application and thereafter seek an order of stay of

execution. To enable the petitioner to approach the

appellate court executing court is directed to stay

order for delivery for two weeks from today. If

petitioner files an application to advance the hearing

of A.S.69/05, Sub Judge, Tirur to advance the hearing

and pass appropriate order in the application to

condone the delay and if that is condoned in the

application for stay also as expeditiously as possible

and at any rate, within two weeks from today.

M.SASIDHARAN NAMBIAR,

JUDGE.

uj.