IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 7428 of 2009(O) PETITIONER: --------------- S.REMA, AGED 41 YEARS, D/O.REMADEVI, CHILAMBARA COLONY VEEDU, CHILAMBARA, ARYANCODE, NANCHANCODE P.O., NOW RESIDING AT VISHNUMANGALAM, KAVALLOOR, KEEZHAROOR, NEYYATTINKARA. BY ADV. SRI.G.S.REGHUNATH RESPONDENT: --------------- BAHULEYAN NAIR DESCRIBED AS S/O.PARAMESWARAN PILLAI, VADAKKEKARA PUTHEN VEEDU, KORALA, KEEZHAROOR, NEYYATTINKARA. ADV. SRI.G.SUDHEER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 7428 OF 2009 O ------------------------------------------------------ Dated this the 20th March, 2009 JUDGMENT The petitioner is defendant No.20 in O.S.No.758 of 2001, on the file of the Munsiff's Court, Neyyattinkara. The suit was filed by the respondent for declaration of title and possession. The writ petitioner states that there is an alternative prayer for recovery of possession of plaint B schedule property and that as regards plaint A schedule property, the prayer is only for declaration of title and possession. The suit was decreed. Defendants 1, 8 to 11 and 13 filed A.S.No.126 of 2004, on the file of the Court of the Subordinate Judge, Neyyattinkara, challenging the judgment and decree passed by the trial court. The case of the petitioner is that she did not get summons in the suit and she came to know about the decree only when one of the respondents in A.S.No.126 of 2004 stated to her that such a decree was passed. The petitioner states that A.S.No.126 of 2004 was filed by those defendants who claimed rights over item No.1 of plaint A schedule and B schedule properties. It is also stated by the petitioner that she is interested in item No.2 of plaint A schedule property, which, according to her, is covered by sale deed No.2040 of 2000, which was executed even before filing of the suit. In these circumstances, the petitioner filed I.A.No.4216 of 2008 in the suit W.P.(C) NO.7428 OF 2009 :: 2 :: under Order IX Rule 13 of the Code of Civil Procedure to set aside the exparte decree passed against her. That application was dismissed by the order dated 4.2.2009. The petitioner has filed C.M.A.No. 9 of 2009, on the file of the Sub Court, Neyyattinkara, challenging the order in I.A.No.4216 of 2008. C.M.A.No.9 of 2009 is pending. 2. The petitioner apprehends that if A.S.No.126 of 2004 is disposed of before disposing of C.M.A.No.9 of 2009, she would be put to great hardship because the Court will not be able to consider the application under Order IX Rule 13 of the Code of Civil Procedure after the disposal of the Appeal. It is submitted that the petitioner has filed an application to remove the names of unnecessary respondents from the array of parties in C.M.A.No.9 of 2009 and, therefore, C.M.A.No.9 of 2009 is ripe for hearing. The relief sought for by the petitioner is to issue a direction to the Sub Court to take up C.M.A.No.9 of 2009 along with A.S.No.126 of 2004. 3. Learned counsel for the petitioner points out that when I.A.No.4216 of 2008 was pending before the trial court, a direction was issued by this Court in Ext.P2 judgment in W.P.(C) No.280 of 2009, to the Sub Court, Neyyattinkara not to pass judgment in A.S.No.126 of 2004 till W.P.(C) NO.7428 OF 2009 :: 3 :: the disposal of I.A.No.4216 of 2008, filed by the petitioner before the trial court. The petitioner submits that the Sub Court takes a view that A.S.No.126 of 2004 is to be disposed of urgently in view of the direction issued by this Court to dispose of the same within a time frame. 4. Though notice by special messenger was served on the respondent, there is no appearance. 5. The request made by the petitioner is just and reasonable. If A.S.No.126 of 2004 is disposed of, probably a contention may be raised by the respondent herein in C.M.A.No.9 of 2009 that the Court has no jurisdiction to entertain an application under Order IX Rule 13 of the Code of Civil Procedure as the decree of the trial court has merged in the appellate decree. The apprehension is that the respondent may take up the contention that C.M.A.No.9 of 2009 is a continuation of I.A.No.4216 of 2008 and, therefore, after disposal of A.S.No.126 of 2004, that application cannot be allowed even by the appellate court. The prayer made by the petitioner is limited to the extent that C.M.A.No.9 of 2009 may be disposed of along with A.S.No.126 of 2004. Accordingly, the Writ Petition is disposed of directing the Sub W.P.(C) NO.7428 OF 2009 :: 4 :: Court, Neyyattinkara to take up C.M.A.No.9 of 2009 for hearing along with A.S.No.126 of 2004 and dispose of the cases together either by a common judgment or by separate judgments. (K.T.SANKARAN) Judge ahz/