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. 3007 of 2007(G) ------------------------- AGAINST THE ORDER IN EA 463/06, EP 31/2000 IN OS.451/1998 of MUNSIFF COURT, HOSDRUG .................... PETITIONER: ------------ KAYIKALON LAXMI, AGED 45 YEARS, D/O.MALINGU NAIR, RESIDING AT VANNARKOL HOUSE, ATTENGANOM P.O., HOSDURG TALUK, KASARGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENTS: ------------- 1. ADUKKADUKKAN DAMODHARAN NAIR, ASGED 55 YEARS, S/O.P.KUNHAMBU NAIR, RESIDING AT MARAN KAVU, PERIYA VILLAGE, HOSDURG TALUK, KASSARGODE DISTRICT. 2. P. KUNHAMBU NAIR, AGED 60 YEARS, S/.KUNHAMBU NAIR, RESIDING AT MARAN KAVU, PERIYA VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. R1 BY ADV. SRI.T.K.VIPINDAS R2 BY ADV. SRI.V.RAJENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 3007/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE EXECUTION PETITION NO.31/00 FILED BY THE PLAINTIFF BEFORE THE COURT BELOW. EXT.P2. COPY OF THE GIFT DEED NO.5299/86 OF SRO, HOSDRUG. EXT.P3. COPY OF THE LAND TAX RECEIPT EXT.P3(a). COPY OF THE LAND TAX RECEIPT EXT.P3(b). COPY OF THE LAND TAX RECEIPT EXT.P3(c). COPY OF THE LAND TAX RECEIPT EXT.P4. COPY OF THE EA NO. 559/01 FILED BY THE PETITIONER EXT.P5. COPY OF THE ORDER DT. 3.1.07 IN EA NO. 463/06 OF COURT BELOW /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 3007 OF 2007 --------------------- Dated this the 16th day of January, 2008 JUDGMENT This writ petition is preferred with a prayer to quash Ext.P1 proceedings and Ext.P5 order. The writ petitioner is not a party to the suit but is the wife of defendant in the suit. There was an order of interim mandatory injunction passed by the trial court, which was confirmed by this court and it is the execution of that interim mandatory injunction, which is questioned in this writ petition. 2. Admittedly, the writ petitioner moved an application under Order XXI Rule 99 for adjudicating her right in the property which had been dismissed for default and I am informed that an appeal is pending before the Subordinate Judge's Court, Hosdrug against the said order. Though this court passed an order of interim stay before service of the order of stay, the learned Munsiff has reported that the interim mandatory injunction had already been implemented by the Amin of the court and therefore, the question of stay could not be implemented. Whatever that may be, it is also contended that though the suit was decreed by the first court in WPC NO 3007/07 2 appeal, the judgment and and decree were set aside and remanded the matter back to the trial court. Against that, a first appeal is preferred and that is pending consideration of this court. So what remains to be considered is the interim mandatory injunction. Interim mandatory injunctions are generally issued only under exceptional circumstances especially to put the property into the original position as on the date of the suit. When such an order is passed, it is liable to be implemented for the reason that the adjudicating process of the court has to be preserved and respected. When the present writ petitioner has moved an application under Order XXI Rule 99 and as the civil procedure code mandates that it has to be tried including the question of right title and interest over the property which also becomes an appealable decree or order, the remedy for the present writ petitioner lies in that proceeding and not in this proceeding. Therefore, preserving the right of the writ petitioner to raise all contentions in the case where she had moved the court under Order XXI Rule 99, which is now pending in appeal, this writ petition is disposed of. M.N.KRISHNAN, JUDGE vps WPC NO 3007/07 3