IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16952 of 2008(R)
1. P.PRAKASH, S/O.M.VELAYUDHAN NAIR,
... Petitioner
Vs
1. A.M.ISACK, S/O.AHAMED SHAH
... Respondent
2. JASMINE ISACK, W/O.A.M.ISACK
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.16952 of 2008
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Dated this the 9th June, 2008.
J U D G M E N T
Petitioner is the plaintiff in O.S.No.721/2006, on the file
of the Munsiff Court, Palakkad. A decree for recovery of possession
was granted against respondents/defendants. They challenged the
decree and judgment before the District Court, Palakkad, in
A.S.No.86/2008. During the pendency of the appeal, they moved
I.A.No.441/2008, an application to stay execution of the decree,
under Rule 5 of Order XLI of Code of Civil Procedure. Under Ext.P2
order, learned District Judge granted an order of stay directing
respondent herein to deposit arrears of rent decreed by the lower
court. Ext.P2 order is challenged in this petition filed under Article 227
of the Constitution of India.
2. The learned senior counsel appearing for the
petitioner argued that as per the decree, arrears of rent was directed
to be adjusted towards the advance paid and therefore there may not
be any arrears of rent as such to be deposited and considering the
W.P.(C) No.16952/2008
2
fact that Kerala Building (Lease and Rent Control) Act is not applicable
to the area where the plaint schedule building is situated, First
appellate court should not have granted an order of stay. The learned
counsel further argued that even if Ext.P2 order is not interfered, there
may be a direction to the First Appellate court to dispose the appeal as
expeditiously as possible.
3. When the First appellate court granted an order of
stay of execution of the decree for recovery of possession, during the
pendency of the first appeal, it cannot be interfered with, as other
wise, the very appeal would become infructuous. If the grievance of
the petitioner is that the appeal will be dragged on, there will be a
direction to District Judge, Palakkad, to dispose of A.S.No.86/2008,
as expeditiously as possible, at any rate, within six months from the
date of receipt of a copy of the judgment.
The writ appeal is disposed as above.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.