IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 OP(C).No. 3151 of 2011(O) -------------------------------------- AGAINST THE ORDER DATED 05/09/2011 IN IA.4186/2011,2037/2011 IN OS.NO. 685/2008 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER/PETITIONER-DEFENDANT NO.1 ---------------------------------------------------------------- BABU, AGED 59 YEARS, S/O.LATE NARAYANAN, VADAKKUMPURATHU VEEDU, EROOR P.O., TRIPUNITHURA. BY ADV. SRI.SATHISH NINAN RESPONDENT(S): RESPONDENTS & L.RS OF DECEASED 5TH RESPONDENT ---------------------------------------------------------------------------------------------------------------- 1. MANI, W/O.LATE MOHANAN, VADAKKUMPURATHU VEEDU, EROOR P.O., TRIPUNITHURA.682 021 2. MINI, D/O.LATE MOHANAN, VADAKKUMPURATHU VEEDU, EROOR P.O., TRIPUNITHURA.682 021 3. SINI, D/O.LATE MOHANAN, VADAKKUMPURATHU VEEDU, EROOR P.O., TRIPUNITHURA.682 021 4. SEENA, D/O.LATE MOHANAN, VADAKKUMPURATHU VEEDU, EROOR P.O., TRIPUNITHURA.682 021 5. NALINI KUNJAN (LATE) 6. SATHI PRABHAKARAN, D/O.NARAYANAN, KOLAVELIPADATH HOUSE, EROOR P.O., TRIPUNITHURA.PIN-682 021 7. SAVITHRI PRABHAKARAN, W/O.PEETHAMBARAN, KUNNATHUPARAMBIL HOUSE, EROOR P.O., TRIPUNITHURA.682 021 8. BIJU, S/O.PEETHAMBARAN, KUNNATHUPARAMBIL HOUSE, EROOR P.O., TRIPUNITHURA.682 021 9. VINOD, S/O.PEETHAMBARAN, KUNNATHUPARAMBIL HOUSE, EROOR P.O., TRIPUNITHURA.682 021 2/- -2- OP(C)NO.3151/2011 10. SHEELA, D/O.PEETHAMBARAN, KUNNATHUPARAMBIL HOUSE, EROOR P.O., TRIPUNITHURA.682 021 11. BABY, D/O.PEETHAMBARAN, KUNNATHUPARAMBIL HOUSE, EROOR P.O., TRIPUNITHURA.682 021 12. BIJI, D/O.PEETHAMBARAN, KUNNATHUPARAMBIL HOUSE, EROOR P.O., TRIPUNITHURA.682 021 13. SUNIL P.K., S/O.LATE NALINI KUNJAN, "AYILLAYM", DS NARAYANAN ROAD, LOURD, KOCHI - 12. 14. ANI P.K., S/O.LATE NALINI KUNJAN, "AYILLAYM", DS NARAYANAN ROAD, LOURD, KOCHI - 12. 15. SHAJI P.K., S/O.LATE NALINI KUNJAN, "AYILLAYM", DS NARAYANAN ROAD, LOURD, KOCHI - 12. 16. JAYANTHI SOJAN, D/O.LATE NALINI KUNJAN, "AYILLAYM", DS NARAYANAN ROAD, LOURD, KOCHI - 12. 17. JALAJA SUDHAKARAN, PAREPARAMBIL, EROOR P.O., TRIPPUNITHURA.682 021 BY ADV. SRI.K.V.JAYACHANDRAN SRI.RAJU V.MATHEW SMT.R.REMA MENON SRI.MATHEW ABRAHAM THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.3151/2011 APPENDIX PETITIONER(S) EXHIBITS EXT-P1 TRUE COPY OF THE APPLICATION IA 4186/2011 IN IA NO. 2037/2011 IN OS NO.685/2008 FILED BY THE PETITIONER BEFORE THE SUB COURT, ERNAKULAM. EXT-P2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 1 TO 4 IN EXHIBIT P1 APPLICATION. EXT-P3 TRUE COPY OF THE ORDER DATED 5.9.2011 IN IA 4186/2011 IN IA NO.2037/2011 IN OS NO.685/2008 OF THE SUB COURT, ERNAKULAM. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3151 of 2011 -------------------------------------- Dated this the 31st day of October, 2011. JUDGMENT Respondents 1 to 4 appear through counsel. 2. 1st defendant in O.S.No.685 of 2008 of the court of learned II Additional Sub Judge, Ernakulam is the petitioner before me. Respondents 1 to 4 filed the suit for partition. Trial court passed a preliminary decree which was challenged in the appeal. The appellate court passed a revised preliminary decree. That is under challenge in this Court in Regular Second Appeal. That appeal is filed with an application to condone the delay of three days in filing the appeal, it is submitted by the learned counsel. In the meantime, respondents 1 to 4 filed I.A.No.2037/2011 for passing a final decree. Petitioner filed I.A.No.4186 of 2011 for stay of proceedings in the trial court. That application was dismissed by Ext.P3, order dated 05.09.2011 which is under challenge. 3. Learned counsel for petitioner submits that since Regular Second Appeal is not admitted as delay is not condoned, petitioner could not seek stay of proceedings for passing the final decree. It is submitted that in case the Regular Second Appeal is allowed in favour of the petitioner, the whole exercise in the final decree proceedings will become futile. 4. Learned counsel for respondents 1 to 4 submitted that it is open to the petitioner to seek appropriate reliefs in the Regular Second Appeal said to be OP(C)No.3151/2011 2 filed. It is also submitted that respondents 1 to 4 are served with notice only on the application to condone the delay. 5. Since the application to condone the delay in filing the Regular Second Appeal is pending consideration, petitioner could not seek relief in that appeal. Having that in mind I am inclined to direct that passing of the final decree will stand in abeyance for a period of one month from this day. In the meantime it is open to the petitioner to move in the Regular Second Appeal for appropriate relief. Resultantly this Original Petition is allowed and Ext.P3, order is modified to the extent that passing of final decree in O.S.No.685 of 2008 of the court of the learned II Additional Sub Judge, Ernakulam will stand in abeyance for a period of one month from this day. THOMAS P.JOSEPH, Judge. cks