IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6823 of 2009(O)
1. JOSE, S/O. PHILIPPOSE, KOCHATHIPARAMBIL
... Petitioner
2. KAVITHA PHILIP, W/O. KOCHATHIPARAMBIL
Vs
1. KOMALAVALLI, D/O. KUNHIMALU,
... Respondent
2. SUBHADRA, D/O. KUNHIMALU,
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :11/03/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C) NO. 6823 OF 2009 O
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Dated this the 11th March, 2009
JUDGMENT
The petitioners who challenged the final decree in O.S.No.16 of
1979, Munsiff-Magistrate Court, Mannarkkad, in A.S.No.81 of 2008, Sub
Court, Ottapalam, filed I.A.No.984 of 2008 before the appellate court to
stay the execution of the final decree. The appellate court was not
inclined to grant stay and the stay petition was dismissed as per the order
dated 15.9.2008, which is under challenge in this Writ Petition.
2. The court below considered the fact that the suit was filed in
1979 for partition and that the petitioners before the court below are
assignees of assignees from the parties during the pendency of the suit
and Appeal. The court below thought that the discretionary relief of stay
cannot be granted in favour of the petitioners.
3. An argument was put forward before the court below that
against the preliminary decree a Second Appeal is pending and,
therefore, if the final decree is engrossed on stamp paper, that would
result in huge loss to the parties, if subsequently the Second Appeal is
allowed. The court below held that the petitioners, who are supplemental
W.P.(C) NO.6823 OF 2009
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respondents 11 and 12 in the final decree proceedings, need not worry
about the loss that may be occasioned to the plaintiffs. The court below
also held that ultimately the rights of parties can be worked out, as
restitution is possible in case the petitioners succeed in Appeal. I do not
think that this is a fit case where discretion exercised by the court below in
not granting stay should be interfered with by exercising jurisdiction under
Article 227 of the Constitution of India. The suit being of the year 1979,
the appellate court was perfectly justified in stating that the delivery
should not be stayed.
For the aforesaid reasons, I hold that the Writ Petition lacks merits
and it is accordingly dismissed.
(K.T.SANKARAN)
Judge
ahz/