IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 32880 of 2004(L)
1. T. ABDULLA BY POWER OF ASTTORNEY HOLDER
... Petitioner
Vs
1. YOUSAF, S/O. POOZHIKKUNNAN
... Respondent
For Petitioner :SRI.V.K.MOHAMMED YOUSUF
For Respondent :SRI.V.CHITAMBARESH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :13/06/2007
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C) No.32880 of 2004
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Dated: 13th June, 2007
JUDGMENT
Ext.P2 order passed by the execution court on an application for
stay filed by the judgment-debtor on the ground that A.S.No.28/01
preferred by him against the decree is not disposed of is under
challenge in this Writ Petition under Article 227 of the Constitution.
2. Heard Mr.V.K.Mohammed Yousuf, learned counsel for the
petitioner and Mr.V.Chitambaresh, learned counsel for the
respondent.
3. Having considered the rival submissions, I am of the view
that there will be no warrant for interfering with Ext.P2 in the
supervisory jurisdiction under Article 227 of the Constitution which is
visitorial in nature. As rightly noticed by the court below, pursuant to
a conditional order of stay granted by the appellate court the
petitioner filed an application before the execution court for receiving
the security offered by him. But that application was dismissed by the
execution court as early as on 3.2.2003. It is without challenging that
order that the petitioner filed E.A.100/04. The learned Munsiff-
Magistrate was right in her view that in the light of the dismissal
order on the application earlier filed for the acceptance of the
W.P.C.No.32880/04 – 2 –
security, there is no scope for stay of the execution proceedings by
the execution court itself, more so since the appeal was even at that
time pending before the appellate court. Neither Mr.Mohammed
Yousuf nor Mr.Chitambaresh, counsel for the respondent were able to
inform me as to whether the appeal preferred by the petitioner has
been finally disposed of. In all probability the appeal is disposed of. If
the appeal is disposed of, naturally the executable decree will be that
of the appellate court. Under these circumstances, the challenge
against Ext.P2 will fail. However, the Writ Petition will stand disposed
of issuing the following directions:
If the Sub Court, Ottappalam has not yet disposed of
A.S.No.28/2001 preferred by the petitioner against the judgment and
decree in O.S.No.204/97, that court will hear and dispose of that
appeal at the earliest and at any rate within one month of receiving
copy of this judgment. Even if the appeal is already disposed of
confirming the judgment and decree of the Munsiff-Magistrate court,
then also the execution court will entertain and pass appropriate
orders with notice to the decree-holder on any application to be
preferred by the petitioner for grant of instalment facility in the
W.P.C.No.32880/04 – 3 –
matter of discharging the decree debt.
srd PIUS C.KURIAKOSE, JUDGE