IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20651 of 2009(O)
1. ALIYARUKANNU RAWTHER,AGED 89 YEARS,
... Petitioner
Vs
1. C.SEKHAR,S/O.CHUDALAMUTHU,THUNDUVILA
... Respondent
2. A.SHAJAHAN RAWTHER,PEZHUMVILA VEEDU,
3. A.SALAM RAWTHER,PEZHUMVILA VEEDU,
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :23/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.20651 of 2009 - O
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Dated this the 23rd day of July, 2009
J U D G M E N T
This writ petition is filed seeking the following reliefs:
“i) To call for the records relating to Exts.P1 to P7
and to issue any appropriate writ, order or direction,
setting aside Ext.P5 order.
ii) To issue any appropriate writ, order or
direction, commanding the Munsiff Court, Punalur not
to proceed with execution proceedings in
E.P.No.44/2003 in O.S.NO.341/1994 till the disposal
of I.A.Nos.1177 and 1178 of 2009 in
R.F.A.No.150/2003 of Sub Court, Kottarakkara.”
2. Petitioner is the first defendant in O.S.No.341/1994 on
the file of the Munsiff Court, Punalur. Suit was one for fixation of
boundary and injunction, both prohibitory and mandatory. First
respondent was the plaintiff in the suit which was decreed.
Against the decree, petitioner preferred an appeal before the Sub
Court, Kottarakkara and the appeal happened to be dismissed for
nontaking of steps against some of the defendants who were the
co-defendants in the suit. Petitioner moved an application for
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restoring the appeal, but, it was filed belatedly with a petition to
condone the delay of nearly one year. Service in that petition is
yet to be completed. Notice of that proceedings is stated to have
been served on the decree holder/plaintiff. Meanwhile, the
decree holder took steps for executing the decree and the
petitioner approaching that court, filed two petitions, to keep the
execution proceedings in abeyance till the application moved by
him before the appellate court for restoring the appeal to file is
disposed on merits. The learned Munsiff declined the relief
sought for under those petitions vide Ext.P5 order. Impeaching
the propriety and correctness of Ext.P5 order, this writ petition
has been filed invoking the supervisory jurisdiction vested with
this Court under Article 227 of the Constitution of India.
3. Having regard to the submissions made by the learned
counsel for the petitioner with reference to Ext.P5 order and
other materials tendered in the petition, I find no notice to the
respondents is necessary and hence it is dispensed with.
4. Learned counsel for the petitioner submitted before
me that dismissal of the appeal by the appellate court for the
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reason that steps have not been taken against the co-defendants
when the decree holder/plaintiff was already served notice and
appeared before that court was not correct as the decree granted
against them in common to the defendants was challenged in the
appeal. It is submitted that in view of the decree of mandatory
injunction granted by the court which is impeached in appeal if
the decree is executed before an opportunity is provided to the
petitioner to espouse his grievances before the appellate court,
provided his restoration application is allowed, it may work out
grave injustice to him. Though I find the reliefs claimed in the
petition are confined to seeking directions to the executing court
to keep in abeyance the execution proceedings, in the nature of
the facts and circumstances presented, it is appropriate and more
advantageous to give a direction to the Sub Court, Kottarakkara,
to dispose of the restoration application moved by the petitioner,
expeditiously. Since the decree has been granted in common
against the first petitioner with the other two defendants,
needless to point out, in an appeal preferred the petitioner need
challenge the decree impleading only the plaintiff who has been
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granted the decree and the presence of the co-defendants in the
appeal is not at all necessary for effective disposal of that appeal.
That being so, if any memo is filed by the petitioner/appellant as
indicated above within a week from the date of judgment to
dispense service on the respondents 2 and 3 in the petition
preferred for restoring the appeal after condoning the delay, the
court below shall hear and dispose of those petitions within two
weeks thereof. If at all the applications are allowed and appeals
restored, needless to point out the names of the respondents,
who had not been given notice of the proceedings of restoration,
shall be struck off from the memorandum of appeal, which shall
be proceeded against the first respondent/decree holder. I direct
the learned Munsiff, Punalur, where the execution of the decree is
pending, to keep in abeyance that proceeding for a period of one
month from the date of this judgment. Execution court is free to
proceed after the expiry of the period with the execution of the
decree, if no order is passed by any superior forum staying the
execution.
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Subject to the above direction, this writ petition is closed.
Handover a copy of the judgment to the counsel for the petitioner
on usual terms and transmit a copy to the Munsiff Court, Punalur
and Sub Court, Kottarakkara.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-