IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 25508 of 2009(O) -------------------------- AS.125/2007 of SUB COURT,NEYYATTINKARA OS.293/1990 of I ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): ----------------------- KESAVAN NADAR, S/O.RAJAPPAN NADAR, VEERALIVILA VEEDU, KARODE DESOM, KARODE VILLAGE. BY ADV. MR.C.E.UNNIKRISHNAN RESPONDENT(S): --------------------------- 1. JNANAMANI NADAR, S/O.NADANKUTTY NADAR, VEERALIVILA THEKKETHATTU VADAKKARIKATHU PUTHEN VEEDU, KARODE DESOM, KARODE VILLAGE, PARASSALA P.O. 2. ROSILY NADATHY SWARNAM, D/O.NADANKUTTY NADAR, VEERALIVILA THEKKETHATTU VADAKKARIKATHU PUTHEN VEEDU, KARODE DESOM, KARODE VILLAGE, PARASSALA P.O. 3. RAJAMONY, S/O.NADANKUTTY NADAR, VEERALIVILA THEKKETHATTU VADAKKARIKATHU PUTHEN VEEDU, KARODE DESOM, KARODE VILLAGE, PARASSALA P.O. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.25508 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 9th September, 2009 JUDGMENT The Writ Petition is filed seeking the following relief: “To issue a writ in the nature of mandamus or any other appropriate writ order or direction commanding the Hon'ble Sub Court, Neyyattinkara to consider and pass orders on I.A.No.804/2009 for stay and I.A.No.1143/2007 for condonation of delay in submitting the appeal in A.S.No.125/2007, pending before it within a time trame fixed by this Hon'ble Court and to stay all further proceedings in E.P.No.572/2004 in O.S.No.293/1990 before the Hon'ble Munsiff's Court, Neyyattinkara, till such disposal.” 2. Petitioner has filed a petition under Order 21 Rule 97 of the C.P.C. resisting the execution of a decree passed in O.S.No.293 of 1990 on the file of the Additional Munsiff Court, Neyyattinkara. That application, after enquiry, was dismissed by P1 order. Against P1 order, he has preferred an appeal along with a stay petition before the Sub Court, Neyyattinkara. The appeal and stay petitions are posted for hearing on 13.10.2009 and meanwhile, in the execution W.P.C.No.25508/09 - 2 - proceedings in O.S.No.293 of 1990 the court has ordered for delivery of the property on 10.9.2009 is the case of the petitioner for seeking the aforementioned relief by filing the Writ Petition. 3. I heard the learned counsel for the petitioner. Delivery of the property in execution before the stay petition filed in the appeal is heard and disposed on merits would cause irreparable injury to the petitioner and he has valid tenable legal rights to resist the execution of the decree which is being executed is the submission of the learned counsel for the petitioner. He was not made a party in the suit which is executed, but in a suit subsequently filed in respect of the very same property, a decree has been granted allotting shares in his favour also and, so much so, execution of the decree in O.S.No.293 of 1990 and delivery of the property to the decree holder in that suit would prejudicially affect the interest of the petitioner is the further submission of the learned counsel. Having regard to the submissions made by the counsel and also taking note of P1 order passed by the execution court, I find no notice to the respondents is necessary and it is dispensed with. It is seen from P1 order that there was a prayer in O.S.No.453 of 1997 for a permanent prohibitory injunction to restrain the decree holder in O.S.No.293 of 1990 from W.P.C.No.25508/09 - 3 - proceeding with the execution of the decree in that suit, that was not allowed. Petitioner's claims by virtue of the decree passed in O.S.No.453 of 1997 and the allotment made thereunder in his favour would be prejudicially affected if the decree in O.S.No.293 of 1990 is executed by delivering the property to the decree holder in that suit, is the case canvassed. P1 order would show that while granting a decree in O.S.No.453 of 1997 the court specifically made it clear that the parties in that suit have to get their share from the plot which was left unpartitioned in O.S.No.293 of 1990. The learned Munsiff has also found the decree passed in O.S.No.453 of 1997 is subject to the decree passed in the earlier suit, O.S.No.293 of 1990. Learned Munsiff has also noted the property allotted to the plaintiff in O.S.No.453 of 1997 is distinct and different from the property allotted to the decree holder in the earlier suit, O.S.No.293 of 1990. It was taking note of the above circumstances, the learned Munsiff dismissed the application moved by the petitioner under Order 21 Rule 97 C.P.C. resisting the execution of the decree passed in O.S.No.293 of 1990. Petitioner has filed an appeal against P1 order with a petition for stay is not at all a ground to deny the decree holder fruits of his decree in a suit which had been instituted nearly W.P.C.No.25508/09 - 4 - two decades ago. I do not find any merit in the Writ Petition, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE