IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 WP(C).No. 7406 of 2009(O) AGAINST THE ORDER IN IA 9235/08 & 9236/08 IN OS.334/2006 OF I ADDITIONAL SUB COURT, ERNAKULAM PETITIONERS: --------------- 1. NAZEER, AGED 41, S/O. HAMEED, RAZIA MANZIL, VATTEKATTU ROAD, KATHRIKADAVU, KALOOR, KOCHI. 2. NAVAS, AGED 39, S/O. HAMEED, RAZIA MANZIL, VATTEKATTU ROAD, KATHRIKADAVU, KALOOR, KOCHI. BY ADV. SRI.K.S.SAJEEV KUMAR SRI.LAJI SAM ZACHARIAH RESPONDENT: --------------- RAZIA, AGED 35 YEARS, W/O. MUHAMMED RAFFI, RAFEEK MANZIL, NADUVATH NAGAR P.O., CHERTHALA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 7406 OF 2009 O ------------------------------------------------------ Dated this the 6th March, 2009 JUDGMENT The petitioners are defendants in O.S.No.334 of 2006, on the file of the I Additional Subordinate Judge's Court, Ernakulam. The suit was filed by the respondent for partition. A preliminary decree was passed exparte. The petitioners filed an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the exparte decree on 10.12.2008. Since there was a delay of 656 days in filing the application under Order IX Rule 13 of the Code of Civil Procedure, petitioners filed an application for condonation of the delay. Both these applications are pending disposal. It is stated that final decree application was filed by the respondent and a Commissioner was appointed to inspect the preliminary decree schedule property. 2. The relief prayed for by the petitioners is to issue a direction to the trial court to dispose of the application to set aside the exparte decree and the application for condonation of the delay in filing the application under Order IX Rule 13 of the Code of Civil Procedure, namely, I.A.Nos.9235 and 9236 of 2008. The petitioners have prayed for an interim relief for staying all proceedings pursuant to the preliminary decree including the inspection by the Commissioner. W.P.(C) NO.7406 OF 2009 :: 2 :: 3. The interim relief prayed for by the petitioners is quite unreasonable. Even if an appeal is filed against a preliminary decree, normally, the appellate court would grant a stay of only passing the final decree. Here, the petitioners have filed an application for setting aside the exparte decree along with an application to condone the delay of 656 days in filing the application for setting aside the exparte decree. Those applications are still pending. The petitioners want to get a stay of the inspection of the property by the Commissioner. I do not think that this is a fit case where discretion can be exercised in favour of the petitioner in a Writ Petition filed under Article 227 of the Constitution of India. The Writ Petition is, accordingly, dismissed. It is made clear that the dismissal of the Writ Petition will not be a bar to the petitioners in approaching the trial court for an early hearing and disposal of the application for setting aside the exparte decree and the application for condonation of delay in filing the application for setting aside the exparte decree. If such an application is moved, the trial court shall consider the same taking into account the facts and circumstances of the case. (K.T.SANKARAN) Judge ahz/