IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29117 of 2009(O)
1. KESAVAN NADAR,.
... Petitioner
Vs
1. GANAMANY NADAR,
... Respondent
2. ROSILI NADATHI SWARNAM -DO- -DO
3. RAJAMANI D/O.NADANKUTTI NADAR -DO- -DO-
For Petitioner :SRI.L.MOHANAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :16/10/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.29117 OF 2009 (O)
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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
reliefs:
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
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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
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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.
S.S.SATHEESACHANDRAN
JUDGE
prp
WPC.29117/09 5
