IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 WP(C).No. 35331 of 2007(F) -------------------------- OS.31/2007 of MUNSIFF COURT, PUNALUR .................... PETITIONER: ------------ VASUDEVAN NAIR, AYARVA PADINJATTATHIL VEEDU, PIDAVOOR VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENTS: ------------- 1. VISWAMITHRAN NAIR, AYARVA PADINJATTATHIL VEEDU, PIDAVOOR MURI, PIDAVOOR VILLAGE, PATHANAPURAM TALUK, PIN 689 695. 2. VICTOR DAVID, Y.M.C.A. ESTATE, PIDAVOOR MURI, PIDAVOOR VILLAGE, PATHANAPURAM TALUK, PIN 689 695. BY ADV. SRI.K.P.SHAHUL HAMEED SRI.RAJESH THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No. 35331/2007 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE PLAINT O.S.31/07 ON THE FILE OF THE MUNSIFF COURT, PUNALUR AND WRITTENSTATEMENT OF THE SAME. P2 : COPY OF THE APPEAL MEMORANDUM IN A.S.222/05 ON THE FILE OF SUB COURT, KOTTARAKKARA. P3 : COPY OF PRELIMINARY JUDGMENT IN OS 8/97 OF THE MUNSIFF COURT, PUNALUR. P4 : COPY OF THE PLAINT IN OS 8/97. P5 : COPY OF APPLICATION FILED BY PETITIONER UNDER SECTION 10 OF CPC IN OS 31/07. P6 : COPY OF OBJECTION FILED BY 1ST RESPONDENT IN IA 1656/07 IN OS 31/07. P7 : COPY OF ORDER DATED 26/10/07 IN IA1656 IN OS 31/07. P8 : COPY OF COMMON JUDGMENT IN OS 173/02 AND OS 246/02 OF MUNSIFF COURT, PUNALUR. // TRUE COPY // PA TO JUDGE. jg M.N.KRISHNAN, J. ------------------------- WP(C) No. 35331 of 2007 --------------------------------- Dated, this the 16th day of January, 2008 J U D G M E N T This writ petition is preferred against the order of the Munsiff, Punalur, whereby she had disallowed the prayer to stay the proceedings in O.S.31/2007 under Section 10 of the Code of Civil Procedure till the disposal of A.S.222/05 pending before the Sub Court, Kottarakkara. A.S.222/05 had arisen out of the judgment and decree in O.S.246/02, whereby the plaintiff therein has been granted an order of injunction. O.S.31/07 is a suit filed by the plaintiff therein for redemption of mortgage. In order to stay the matter under Section 10 of the CPC, the matter in issue in the former suit and the latter suit shall be the same or at least it is substantially the same. So far as A.S.222/05 is concerned, which is preferred against the judgment in O.S.246/02, the court can only consider the question of possession of the plaintiff and if he is found to be in possession to grant the same or otherwise decline the relief. No other questions, regarding the validity or invalidity of any of the decrees or documents, can be determined in that case. Whereas O.S.31/07 is one for redemption of a mortgage, where the question of mortgage itself is questioned. The execution of the WP(C) No. 35331/2007 -2- document also is under challenge and it is submitted that there are previous judgments which will go against the case. So larger matters are to be considered in that case and there is no point in staying the case where larger points involved, till the disposal of the case, where the court is only concerned with the possessory aspect of the plaintiff therein. Therefore, the issues are not substantially the same in both the suits, except that of the relationship of the parties, and therefore, I feel, the court below has only arrived at a correct decision and therefore, the writ petition lacks merit and is dismissed. (M.N.KRISHNAN, JUDGE) jg