IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15886 of 2008(N)
1. LALY VARGHESE
... Petitioner
Vs
1. SADANANDAN
... Respondent
For Petitioner :SRI.ABRAHAM P.GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/05/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
-------------------------------
W.P.(C) No.15886 of 2008
-------------------------------
Dated this the 28th May, 2008.
J U D G M E N T
Petitioners are appellants in A.S.NO.197/2007, on the
file of Sub Court, Muvattupuzha. Appeal was filed challenging the
judgment, whereunder a decree for permanent prohibitory injunction
was granted in favour of the respondents, in O.S.No.413/2006, on the
file of the Munsiff Court, Muvattupuzha. In the first appeal, petitioners
filed I.A.No.515/2008, an application for staying further proceedings in
E.P.No.36/2008, which was initiated by respondents-decree holders
alleging violation of decree for injunction. Under Ext.P7 order, learned
Sub Judge dismissed the application. It is challenged in this petition
filed under Article 227 of the Constitution of India.
2. The argument of the learned counsel appearing for
the petitioners is that as per Ext.P7 order, learned Sub Judge refused
to stay the execution proceedings for the reason that an order of
temporary injunction was prevailing through out when the suit was
pending, and the suit was decreed after recording the evidence. It was
W.P.(C) No.15886/2008
2
argued that the order of temporary injunction originally granted in the
suit was only restraining petitioners from cutting open a new way
through the plaint schedule property and altering its present lie, and
committing waste, and a way was in existence at that time, and,
therefore, the first Appellate court should have stayed the execution
proceedings. The question whether a way was in existence in the
plaint schedule property, and whether petitioners have a right to use
the way are matters to be decided in the first appeal. After evidence,
trial court granted a decree in favour of the respondents. Even when
the suit was pending before the trial curt, an order of injunction was
prevailing. In such circumstances, I do not find any reason to
interfere with Ext.P7 order. Learned Sub Judge is directed to dispose
A.S.No.197/2007, as expeditiously as possible, at any rate, within one
month from the date of receipt of a copy of this judgment.
Petition is disposed as above.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.