Kesavan Nadar vs Ganamany Nadar on 16 October, 2009

Kerala High Court
Kesavan Nadar vs Ganamany Nadar on 16 October, 2009




WP(C).No. 29117 of 2009(O)

                      ...  Petitioner


                       ...       Respondent



                For Petitioner  :SRI.L.MOHANAN

                For Respondent  : No Appearance


 Dated :16/10/2009

 O R D E R
              S.S.SATHEESACHANDRAN, J.
             W.P.(C).NO.29117 OF 2009 (O)
        Dated this the 16th day of October, 2009

                      J U D G M E N T

The writ petition is filed seeking mainly the following


i. to issue a writ of certiorari or other
appropriate writ, order or direction,
calling for the records leading to Ext.P4
and to set aside the same.

ii. to issue a writ of mandamus or other
appropriate writ, order or direction,
directing the court below to dispose
A.S.No.125 of 2007 pending before it and
in the meanwhile stay the execution of the
decree in O.S.No.293 of 1990 on the file
of the Munsiff’s Court, Neyyattinkara.

2. Petitioner had filed an obstruction petition against the

execution of a decree passed in a suit for partition, namely

O.S.No.293 of 1990 on the file of the Ist Additional Munsiff

WPC.29117/09 2

Court, Neyyattinkara. That petition, after enquiry, was

dismissed by the learned Munsiff. An appeal was preferred as

A.S.No.125 of 2007 before the Sub Court, Neyyattinkara

against the dismissal of his petition. In the appeal, an

application for stay was applied for, but, declined by the

appellate court. Ext.P4 is that order. Propriety and

correctness of Ext.P4 order is challenged in the writ petition

invoking the supervisory jurisdiction vested with this Court

under Article 227 of the Constitution of India.

2. I heard the learned counsel for the petitioner. Having

regard to the submissions made and taking note of the facts

and circumstances presented, I find no notice to the

respondents is necessary, and, hence, it is dispensed with.

The learned counsel for the petitioner submitted after passing

of the decree in O.S.No.293 of 1990, without impleading all

the sharers having right over the property, another suit had

been filed as O.S.No.453 of 1997, in which, the decree holders

in the previous suit were also parties, and a decree had been

passed binding on them as well. In view of the decree passed

in the second suit, superseding the previous decree passed in

WPC.29117/09 3

favour of the respondents, his claim over the property was

raised by filing an obstruction petition. Without adverting to

the claim canvassed with reference to the decree passed in the

second suit the learned Munsiff dismissed that petition.

Though the appeal preferred has been admitted, in view of the

dismissal of the stay petition, the appeal will become

infructuous and the valuable rights of the petitioner over the

property would be seriously affected, is the submission of the

counsel. Having regard to the submissions made and perusing

the exhibits produced in the writ petition, I find even in the

judgment relied by the petitioner and passed in the second

suit, it is made clear that the decree had been granted with

direction not to disturb the decree granted in favour of the

respondents/plaintiffs in O.S.No.293 of 1990. Operative

portion of the judgment in Ext.P2 disclose that the shares of

the plaintiff and other defendants in that suit, O.S.No.453 of

1997 are directed to be allotted, from the other portions of the

property, which are not set apart to D1 to D3 as per Exts.B1

and B2, the commission report and plan prepared in their suit

O.S.No.293 of 1990. When that be so, prima facie, there

appears to be no merit in the case canvassed by the petitioner

WPC.29117/09 4

by virtue of the decree passed in the second suit the decree

granted to respondents/plaintiffs in the previous suit is

prejudicially affected. Granting of stay in an appeal falls

within the preview of the judicial discretion of the appellate

court. I find no impropriety in Ext.P4 order passed by the

court below in declining the stay sought for by the

petitioner/appellant in the given facts of the case. However, I

make it clear that none of the observations made by this Court

shall have any influence or bearing in disposing the appeal on

its merits. Views expressed by this Court are formed only on a

prima facie evaluation of the materials, and submissions made,

but, not on the appreciation of the evidence in the case, and so

much so, it should not affect the substantive rights of the

parties involved in the proceedings. Subject to what is stated

above, the writ petition is disposed.



WPC.29117/09    5

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