IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(C).No. 29938 of 2009(O) --------------------------------------- AGAINST THE ORDER N EP.NO.116/2007 IN OS.NO.165/1972 OF PRINCIPAL SUB COURT, PALAKKAD. .................... PETITIONERS: --------------------- 1. THANKAMANI, W/O.LATE DAMODHARAN, ELANTHIYANKODE, KUNNANUR AMSOM, PALAKKAD. 2. SHEEBA, D/O.LATE DAMODHARAN, ELANTHIYANKODE, KUNNANUR AMSOM, PALAKKAD. 3. SHEELA, D/O.LATE DAMODHARAN, ELANTHIYANKODE, KUNNANUR AMSOM, PALAKKAD. 4. KRISHNADAS, S/O.LATE DAMODHARAN, ELANTHIYANKODE, KUNNANUR AMSOM, PALAKKAD. BY ADV. MR.A.R.GANGADAS. RESPONDENTS: ------------------------ 1. RAMAKRISHNAN, S/O.MADHAVAN, THEKKEKADU, KOTTAYI AMSOM, ALATHUR TALUK. 2. GANGADHARAN, S/O.VELAYUDHAN, KOOTTALATHODI, PARUTHIPULLY, ALATHUR TALUK. 3. PARAMESWARAN, S/O.VELAYUDHAN, KOOTTALATHODI, PARUTHIPULLY, ALATHUR TALUK. 4. SAROJINI, D/O.VELAYUDHAN, KOOTTALATHODI, PARUTHIPULLY, ALATHUR TALUK. 5. BABU, S/O.VELAYUDHAN, KOOTTALATHODI, PARUTHIPULLY, ALATHUR TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.29938 OF 2009 -------------------------- Dated this the 22nd day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to Ext.P8 and set aside the same. ii) Issue such other further orders deemed fit and proper in the circumstances of the case. Iii) Award the cost of the petitioners in this proceedings. 2. Petitioners are the legal representatives of the third defendant in O.S No.165 of 1972 on the file of the Sub Court, Palakkad. The above suit one for partition in which a preliminary decree and final decree had already been passed. Final decree passed in the W.P.(C).No.29946 OF 2009 Page numbers suit is now under challenge by way of an appeal as A.S No. 425/1999 before this court. After the death of the third defendant, as his legal representatives these petitioners moved an application before the execution court for delivery of the property allotted to the third defendant as per the final decree. The court below allowed that application and accordingly delivery was effected. Pursuant thereto, it was brought to the notice of the court by the first respondent herein, one of the legal representatives of the first defendant in the suit that a stay order passed in the appeal by the appellate court continue to be in force, and, ignoring it the delivery had been effected. Though the petitioners filed objections to the redelivery of the property sought for by the first respondent, the court below taking note that delivery was effected disregarding the stay order ordered for redelivery. In compliance of that, redelivery was effected and the application of the first respondent was closed. Ext.P8 is that order. W.P.(C).No.29946 OF 2009 Page numbers Petitioners challenged Ext.P8 order and also the proceedings which led to redelivery contending that after the death of the first respondent on 10/10/2006 they have not been impleaded in the appeal as additional respondents and further they had no notice of the stay order passed by the court. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and hence it is dispensed with. I find no impropriety or illegality in the order passed by the court below directing redelivery of the property when it was brought to its notice that delivery in favour of the petitioners had been ordered without taking notice of the stay order passed by the appellate court in A.S No.425/1999. The mischief committed was undone by the court by ordering redelivery. Petitioners, whether they W.P.(C).No.29946 OF 2009 Page numbers have been impleaded in the appeal or not, cannot seek delivery of the property allotted to their predecessor in the final decree, so long as a stay order passed in the pending appeal continues to be in force. The fact that, property was delivered over to them disregarding that stay order will not confer on them any better right to retain possession of the property delivered over. So much so, there is no impropriety in the order passed by the court below directing redelivery of the property. The learned counsel for the petitioners submitted that the appellants have not taken serious steps to get the petitioners impleaded as additional respondents in the pending appeal, and now, if they appear voluntarily, they will have to move for setting aside the abatement explaining the delay before the appellate court. I find no difficulty for the appellants to appear in the appeal and seek for their impleadment as legal representatives of the third defendant in the suit stating the circumstances which entitle them to get W.P.(C).No.29946 OF 2009 Page numbers themselves impleaded as additional respondents in the appeal. The default on the part of the appellant in getting them impleaded despite the death of the third defendant on 10/10/2006 can be brought to the notice of the court seeking for its indulgence to permit them to be impleaded as additional respondents, if they so desire. No doubt, the appellate court has to take note of the circumstances involved and pass appropriate orders, which needless to say, must be one, advancing the ends of justice, if any application is moved by the petitioners for getting themselves impleaded as additional respondents in the appeal. Subject to the above observations, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv