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.34276 of 2008(E) --------------------------------- AGAINST THE ORDER IN E.A.78/2008 IN EP.11/2007 IN O.S.289/00 of MUNSIFF COURT, PEERMADE .................... PETITIONER(S): --------------- CHINNAPPAN, AGED 75, S/O ABRAHAM, RESIDING AT ARANACKAL DIVISION, VANDIPERIYAR KARA, MANJUMALA VILLAGE, PEERUMEDU TALUK, IDUKKI DIST. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.JAISEMON P.K. RESPONDENTS: ------------------ 1. THE MIDLAND RUBBER AND PRODUCE COMPANY LTD, REGISTERED OFFICE AT 21/674, BEACH ROAD, ALAPPUZHA-688012, REP.BY ITS MANAGER. 2. SMT.MALAR, W/O.XAVIOUR, AGED AT ABOUT 43 RESIDING AT ARNACKAL ESTATE, VANDIPERIYAR KARA, MANJUMALA VILLAGE. 3. SHRI XAVIER, AGED 47, S/O CHINNAPPAN, ARANACKAL DIVISION, VANDIPERIYAR KARA, MANJUMALA VILLAGE, PEERUMEDU TALUK, IDUKKI DISTRICT. 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.34276 of 2008 ------------------------------------------------ Dated this the 20th day of November, 2008 JUDGMENT The petitioner is the third defendant in O.S.289/2000. Ext.P2 is the judgment passed against the defendants in O.S.289/2000 and the decree in the said suit is now put in execution and Ext.P5 order is passed by the execution court ordering for delivery and report to 15/11/08. 2. It is submitted by the counsel for the petitioner that A.S.35/08 evidenced by Ext.P4 has been filed before the Sub Court, Kattappana by the petitioner but with a delay of 1006 days and therefore, the appeal was filed along with a petition to condone the said delay and no orders could be passed in the said appeal for stay of the proceedings as the delay condonation petition is not disposed of and therefore, the petitioner filed W. P. C. No.34276 of 2008 -2- E.A.78/08 before the Execution Court under Order XXI Rule 26 of the C.P.C to stay further proceedings in the E.P to enable the petitioner/appellant to get orders from the appellate court, but the execution court is not prepared to consider Ext.P6. Counsel submits that direction in Ext.P5 to deliver and report by 15/11/08 which now stands adjourned to 24/11/08 be adjourned at least by one month so as to enable the petitioner to obtain appropriate orders from the appellate court getting delay condonation petition filed in the said appeal disposed of in the meanwhile. He further submits that notice in the delay condonation petition and in the appeal is not yet served, but that he will see to it that service is completed by effecting service of notice on the counsel who was appearing for the decree holder before the trial court and that in any event the W. P. C. No.34276 of 2008 -3- petitioner will not ask for further extension of time beyond 30 days. 3. In the result, I direct the execution court to adjourn delivery by one month so as to enable the petitioner third defendant to obtain appropriate orders from the appellate court wherein the decree put in execution is under challenge. 4. This Writ Petition is disposed of as above. The petitioner is directed to produce a copy of this judgment before the execution court with notice to counsel for decree holder as this writ petition is being disposed of without notice to the respondents. K.P.BALACHANDRAN, JUDGE kns/-