IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15109 of 2010(O)
1. T.V.NARAYANAN, AGED 47 YEARS,
... Petitioner
Vs
1. V.GOPALAN, AGED 53 YEARS,
... Respondent
For Petitioner :SRI.M.SASINDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/05/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P.C.No. 15109 of 2010
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Dated this 18th day of May, 2010
JUDGMENT
The prayer in this writ petition is to declare that Ext.P7, order
while Exts.P4 and P5 applications are pending consideration is
illegal and irregular and for direction to the learned Munsiff,
Hosdurg to pass orders on Exts.P4 and P5 applications within two
weeks. The further prayer is to direct the learned Munsiff to pass
fresh orders on Ext.P6 only after disposal of Exts.P4 and P5
application.
2. Respondent filed O.S.No.67 of 2007 against petitioner
seeking specific performance of an agreement for sale or in the
alternative for realisation of the advance money. Petitioner filed
written statement and on the side of the respondent, PWs.1 to 3
were examined and Exts.A1 to A3 were marked. The case was
posted for evidence of the petitioner and when he remained absent
and his counsel reported no instructions that resulted in petitioner
being placed ex parte. He then filed I.A.No.4637 of 2007 to set
aside ex parte order which was allowed. Again the case was posted
for trial in the list but there was no representation for petitioner,
W.P.C.No.15109 of 2010
: 2 :
nor was he present. Based on the available evidence learned
Munsiff passed a decree for specific performance. For 2 years, 4
months and 21 days petitioner did not move, of course he has a
case that he had no notice of the decree. In the meantime the
document in respect of the suit property was executed in the name
of respondent through court and following that, he filed application
under section 28 of the Specific Relief Act (Ext.P6) to get
possession of the property. In the meantime, petitioner filed
I.A.Nos.823 of 2010 and 824 of 2010 on the trial side to set aside
what he called, the ex parte decree and for condonation of delay of
2 years, 4 months and 21 days. Learned Munsiff passed Ext.P7,
order on Ext.P6, application . Hence the writ petition. Learned
counsel submits that the case is posted on 27-05-2010 for delivery
of possession and that I.A.Nos.823 of 2010 and 824 of 2010 are
posted on 25-05-2010 for consideration.
3. Concededly, no stay could be obtained by the petitioner
from the trial side on filing I.A.Nos.823 of 2010 and 824 of 2010.
In the absence of any order of stay the court was justified in issuing
Ext.P7, order. So far as there is no jurisdictional error or legal
infirmity, that order cannot be challenged. It is open to the
petitioner to move the court where I.A.No.823 of 2010 and 824 of
W.P.C.No.15109 of 2010
: 3 :
2010 are pending and seek stay of delivery of possession if
circumstances warranted. There is no reason why this court should
interfere under Article 227 of the Constitution.
The writ petition is dismissed accordingly.
(THOMAS P JOSEPH, JUDGE)
Sbna/-