IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23575 of 2008(F)
1. ANNIE VINCENT, AGED ABOUT 68 YEARS,
... Petitioner
2. P.A.PHILOMINA GEORGE, D/O. LATE
3. P.A.MATHEW,S/O. LATE P.M. ANTONY,AGED 48
4. P.A.FRANCIS SABU,
5. P.A.BENO, S/O. LATE P.M. ANTONY,
6. ANNAKUTTY, AGED ABOUT 70 YEARS,
7. P.J.MATHEW, AGED ABOUT 45 YEARS
8. P.J.THOMAS, AGED ABOUT 43 YEARS
9. P.J.VARGHESE, AGED ABOUT 38 YEARS,
10. PHILOMINA ANTONY, AGED ABOUT 40 YEARS
Vs
1. JOSEPH.T.C., AGED 50 YEARS,
... Respondent
2. SR.JISHA, AGED 24, D/O.ELIZABATH
3. MARY MARGRATE, AGED 22 YEARS,
4. FRANCIS JOSEPH, AGED 21 YEARS
5. MARY, AGED 45 YEARS,
6. SHEELA JAMES, AGED 38 YEARS,
7. SEBASTINE JOSEPH, AGED 17,
8. GIYA TREESA, AGED 16, D/O.LATE JAMES
9. GEORGE MATHEW SABU, AGED 40,
10. JOSEPH MARTIN @ ROY, AGED 38 YEARS
11. P.F.XAVIER, AGED 50 YEARS,
12. P.F.GEORGEM AGED 55 YEARS,
13. PHILOMINA, AGED 65 YEARS,
14. ELIZABETH,AGED 62 YEARS,
15. MARIYA JUSTINA @ RANSY,AGED 48 YEARS,
16. ELEZEBATH AGED 72 YEARS,
17. JOSE JONAS @ JOHNY AGED 49,
18. JOSEPHINE PHILOMINA @ SOPHY,
19. JAMES, AGED 45 YEARS,
20. MATHEWS @ SAJAN,
21. JESSY MARY, AGED 41 YEARS,
22. CHINNAMMA XAVIER, W/O.XAVIER
23. PHILS ANTONY, S/O.LATE P.M.XAVIER
24. GEORGE, S/O. LATE P.M.XAVIER
25. JAME JOSY, D/O.LATE P.M.XAVIER
26. FR.JOHN PULIPARAMBIL,
27. V.R.JAMES, H/O.LATE JESSY JAMES
28. NIMMY JAMES, D/O. JESSY JAMES,
29. JIJO JOSEPH, S/O. LATE JESSY JAMES
30. JULE MARTIN,D/O. LATE P.M.XAVIER
For Petitioner :SRI.BINDU SREEKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :05/08/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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W.P.(C) NO. 23575 OF 2008
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Dated this the 5th day of August, 2008
JUDGMENT
This petition is filed under Article 227 of Constitution of
India for a direction to District Court, Ernakulam to issue carbon
copy of the order passed in I.A.5523 of 2008 and for a direction
to stay the execution proceedings till the disposal of I.A.5268 of
2008 and for a direction to District Court, Ernakulam to allow
the application filed by the petitioners to effect service to the
respondents.
2. Learned counsel appearing for petitioners was heard.
3. Petitioners are the appellants in A.S.169 of 2008.
Appeal was filed along with an application to condone the delay
of more than 1000 days in filing the appeal. Petitioners filed
I.A.5268 of 2008, an application to stay further proceedings in
E.P. 628 of 2007 in execution of the final decree challenged in
A.S.169 of 2008. The case of the petitioners is that I.A.5523 of
2008 was filed for serving notice to the other respondents
through special messenger and it was dismissed by the learned
WP(C)23575/08 2
District Judge on 30.7.2008 and a carbon copy application was
filed immediately and petitioners did not so far get the carbon
copy. A direction is sought to issue the carbon copy. If the
petitioners have applied for carbon copy of the order passed in
I.A.5523 of 2008 and the carbon copy is not so far furnished,
District Court, Ernakulam is directed to issue carbon copy
without further delay at any rate within five days from the date
of receipt of a copy of this judgment.
4. The other relief of direction to the District Court to
allow the application filed by the petitioners to effect proper
service cannot be granted in this writ petition, as the very
purpose of seeking carbon copy of the order in I.A. 5523 of 2008
is to challenge that order. Then the question is whether the
delivery ordered in the execution petition is to be stayed till an
order is passed on I.A. 5268 of 2008. When the appeal was filed
after delay of more than 1000 days, without contending the
delay First Appellate Court cannot grant an order of stay of
execution of the decree. The question is whether it is to be
granted by this Court invoking the extraordinary powers under
Article 227 of Constitution of India. When petitioners are not
WP(C)23575/08 3
entitled to an order of stay before condoning the inordinate
delay, I do not find it is proper for this Court to grant an order of
stay circumventing that provision.
Writ petition is disposed accordingly.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-