IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 6823 of 2009(O) AS.81/2008 OF SUB COURT, OTTAPPALAM OS.16/1979 OF MUNSIFF-MAGISTRATE COURT,MANNARKAD PETITIONERS: --------------- 1. JOSE, S/O. PHILIPPOSE, KOCHATHIPARAMBIL 2. KAVITHA PHILIP, W/O. KOCHATHIPARAMBIL PHILIP, BOTH ARE RESIDING AT ARAKURISSI AMSOM, PERIMBIDARI DESOM, MANNARKKAD TALUK, PALAKKAD DIST. BY SENIOR ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS: --------------- 1. KOMALAVALLI, D/O. KUNHIMALU, 2. SUBHADRA, D/O. KUNHIMALU, BOTH ARE RESIDING AT ARAKURISSI AMSOM, PERIMBIDIRARI DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 6823 OF 2009 O ------------------------------------------------------ Dated this the 11th March, 2009 JUDGMENT The petitioners who challenged the final decree in O.S.No.16 of 1979, Munsiff-Magistrate Court, Mannarkkad, in A.S.No.81 of 2008, Sub Court, Ottapalam, filed I.A.No.984 of 2008 before the appellate court to stay the execution of the final decree. The appellate court was not inclined to grant stay and the stay petition was dismissed as per the order dated 15.9.2008, which is under challenge in this Writ Petition. 2. The court below considered the fact that the suit was filed in 1979 for partition and that the petitioners before the court below are assignees of assignees from the parties during the pendency of the suit and Appeal. The court below thought that the discretionary relief of stay cannot be granted in favour of the petitioners. 3. An argument was put forward before the court below that against the preliminary decree a Second Appeal is pending and, therefore, if the final decree is engrossed on stamp paper, that would result in huge loss to the parties, if subsequently the Second Appeal is allowed. The court below held that the petitioners, who are supplemental W.P.(C) NO.6823 OF 2009 :: 2 :: respondents 11 and 12 in the final decree proceedings, need not worry about the loss that may be occasioned to the plaintiffs. The court below also held that ultimately the rights of parties can be worked out, as restitution is possible in case the petitioners succeed in Appeal. I do not think that this is a fit case where discretion exercised by the court below in not granting stay should be interfered with by exercising jurisdiction under Article 227 of the Constitution of India. The suit being of the year 1979, the appellate court was perfectly justified in stating that the delivery should not be stayed. For the aforesaid reasons, I hold that the Writ Petition lacks merits and it is accordingly dismissed. (K.T.SANKARAN) Judge ahz/