IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WP(C).No. 34274 of 2008(E) ---------------------------------- OS.1279/2005 of II ADDL.M.C.,TRIVANDRUM .................... PETITIONER: --------------- V.RATNAKARAN, S/O. VELAYUDHAN, AGED 73 YEARS, PROPRIETOR, KERALA LACQUER AND METAL INDUSTRIES, THAKARAPARAMBU ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV RESPONDENTS: ----------------- 1. RADHA, W/O. KAMALASANAN, TC 28/1572, KAMALA BUILDING, THAKARAPARAMBU ROAD, THIRUVANANTHAPURAM. 2. KAMALASANAN, TC 28/1572, KAMALA- BUILDING, THAKARAPARAMBU ROAD, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34274 of 2008 ------------------------------------------------ Dated this the 20th day of November, 2008 JUDGMENT Heard the counsel for the petitioner. 2. The grievance of the petitioner is that Ext.P3 petition filed under Section 10 of the C.P.C is dismissed by the court below passing Ext.P4 order whereas in fact it was a fit case where proceedings in the suit should have been stayed under Section 10 of the C.P.C. Ext.P3 petition was moved by the petitioner in O.S.1279/05. It is submitted that the prayer in the suit is for putting up of boundary wall as per plan appended to the decree in O.S.1607/01. All the same, the court below found from the petition and objection filed before it that an appeal is pending against the judgment and decree in O.S. 1607/01. If it were so it is only proper that proceedings in the court below are stayed W. P. C. No.34274 of 2008 -2- under Section 10 of the C.P.C. The court below dismissed the petition as neither side produced decree and judgment in the suit O.S.1607/01. It is only in the event of the decree in O.S.1607/01 being produced along with the plan appended thereto the court below can get convinced that boundary is sought to be put up as prayed for in O.S.1279/05 is on the basis of a plan that is attached to the decree in O.S.1607/01. In the absence of production of decree in O.S.1607/01 the court cannot be blamed for not having stayed the proceedings under Section 10 C.P.C. Hence, there is no merit in this Writ Petition assailing Ext.P4. However, the impugned order (Ext.P4) passed on Ext.P3 is set aside and the court below is directed to consider Ext.P3 petition afresh provided copy of decree with the plan annexed thereto in O.S.1607/01 is W. P. C. No.34274 of 2008 -3- also filed and a request is made for staying of the proceedings on the basis thereof. 3. This Writ Petition is disposed of as above. K.P.BALACHANDRAN, JUDGE kns/-