IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 9381 of 2009(O) ------------------------- AGAINST THE ORDER IN EA.106/2009 IN OS.67/1996 of MUNSIFF COURT, HOSDURG .................... PETITIONER(S): --------------- 1. MARYKUTTY.T.V., W/O.LATE P.J.JOHN, RESIDING AT PEROLE OF PEROLE OF VILLAGE, HOSDURG TALUK, P.O.NILESHWAR. 2. GEORGEKUTTY P.JOHN, S/O.LATE P.J.JOHN, R/AT ELLUMPURAM, MUTTOM VILLAGE, P.O.ELLUMPURAM, THODUPUZHA TALUK, IDUKKI DISTRICT. 3. REJIMOL @ ANNAMMA JOHN, D/O.IST PETITIONER MARYKUTTY, R/AT KODANAD, KOOVAPPADI GRAMA PANCHAYATH, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): --------------- PUTHIYAPARAMBAN RAMACHANDRAN, S/O.SOWDAMINI AMMA, HINDU, AGRICULTURIST, R/AT KARALAM KINANOOR VILLAGE, HOSDURG TALUK, P.O.KATTIPOYIL, KASARAGOD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------ W.P.(C).No.9381 of 2009 ----------------------------------- Dated this the 24th day of March, 2009 JUDGMENT The first petitioner and her late husband P.J.John were defendants in O.S.No.67 of 1996 on the file of the Munsiff’s Court, Hosdurg. A decree was granted in favour of the respondent for recovery of possession. Though there was an Appeal and Second Appeal at the instance of the defendants, they were dismissed. 2. The petitioners filed O.S.No.107 of 2008 before the Sub Court, Hosdurg to set aside the decree in O.S.No.67 of 1996 on the ground of fraud. That suit is pending. Execution was levied in O.S.No.67 of 1996. The petitioners filed an application for stay of execution of the decree in O.S.No.67 of 1996. But, no order of stay was granted. The petitioners filed E.A.No.106 of 2009 before the executing court to stay the execution under Rule 29 of Order XXI of the Code of Civil Procedure. The executing court by a detailed order held that the petitioners are not entitled WPC No.9381/2009 2 to the reliefs. 3. It was rightly held by the executing court that Rule 29 of Order XXI is not applicable in the case. As held in Janaki Amma vs. Bharathi Amma (1986 KLT 1214), the power under Rule 29 of Order XXI can be exercised only by the court before which a suit was filed to set aside the decree which was sought to be executed. Such an application cannot be filed before the court executing the decree sought to be set aside. On the merits also, the executing court found that there is no ground to stay the execution proceedings in respect of a suit filed in 1996. The order does not suffer from any infirmity. I do not think that the petitioners are entitled to invoke the jurisdiction of this Court under Article 227 of the Constitution of India to set aside the aforesaid order passed by the court below. The Writ Petition is accordingly dismissed. K.T.SANKARAN, JUDGE csl