IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 36788 of 2009(O) --------------------------------------- AS.NO.306/2004 OF DISTRICT COURT,THIRUVANANTHAPURAM, OS.NO.943/1995 & 1153/1997 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. .................... PETITIONER: ------------------- SAROJINI, AGED 62 YEARS, D/O. MEENAKSHI, ROADARIKATHU VEEDU, KAVUMPURAM, PULIYARAKONAM.P.O., THIRUVANANTHAPURAM. BY ADV. MR.B.HARISH KUMAR. RESPONDENT: ---------------------- JAGADAMMA, AGED 57 YEARS, D/O. BHAGEERATHI, RESIDING AT VANCHIYOORKONATHU KIZHAKKUMKARA PUTHEN VEEDU, CHEVULLOOR MURI, VILAPPIL VILLAGE, THIRUVANANTHAPURAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.36788 of 2009 - O --------------------------------- Dated this the 18th day of December, 2009 J U D G M E N T Petitioner is the judgment debtor/defendant in O.S.No.1153 of 1997 on the file of the Principal Munsiff Court, Thiruvananthapuram. Suit was one for declaration of title, injunction and recovery of possession, and respondent was the plaintiff. Petitioner/plaintiff had also filed another suit as O.S.No.943 of 1995 for a decree of perpetual prohibitory injunction. Property involved in both the suits, it is submitted by the counsel for the petitioner, is one and the same. After joint trial, suit filed by the petitioner was dismissed. A preliminary decree was passed in O.S.No.153 of 1997 declaring the title of the respondent over the property relegating the fixation of the boundary of the property and for recovery of possession in the final decree proceedings. A final decree was also later passed granting the reliefs canvassed by the respondent. Against the final decree passed petitioner had preferred an appeal, but, that appeal was dismissed for default two years back. Now the respondent/decree holder is proceeding with steps for delivery of the property in execution. Petitioner has moved an application by W.P.(C).No.36788 of 2009 - O 2 restoring his appeal dismissed for default and till that application is considered and disposed on merits the execution proceedings be kept in abeyance, is the limited relief canvassed at the time of hearing of the writ petition. Considering the facts and circumstances presented with reference to Ext.P1 judgment rendered by the learned Munsiff, I find that the relief sought for by the petitioner cannot be entertained. Admittedly, petitioner has not preferred any appeal against the decision rendered under the common judgment in his suit wherein the question whether she has any right over the plaint property was considered and found against. I do not want to express any opinion on the merits of the appeal preferred by the petitioner against the decision in the suit filed by the respondent, that alone, even assuming that restoration application is allowed and her appeal is taken on the file of the court. There is no merit in the writ petition and it is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-