IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 FAO.No. 300 of 2008() --------------------- AGAINST THE ORDER DATED 21/10/2008 IN IA 1444/2008 IN AS.32/2008 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT(S):/RESPONDENTS/PLAINTIFFS ---------------------------------------------------- 1. ROBINSON,S/O.JULIYAN, SANU HUSE, SOUTH FIRTM ABHEBGI DESINM (VIA)KADAKKAVUR. 2. SISANNAM SABY GIYSEM SIYTG FIRTM ANJENGO DESOM, (VIA)KADAKKAVUR, THIRUVANANTHAPURAM DIST. BY ADV. SRI.R.ANILKUMAR RESPONDENT(S): PETITIONER/APPELLANT --------------------------------------------------- LEELA GOMAS, D/O.THRESYAMMA, AGED 58, ST.JUDE COTTAGE,AP IV/NO.165 WARD NO.6,ANCHUTHENGU DESOM,KADAKKAVOOR THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 300 OF 2008 = = = = = = = = = = = = = = = Dated this the 26th day of November, 2008. J U D G M E N T This appeal is preferred against the order of the Subordinate Judge, Attingal in I.A.1444/08 in A.S.32/08. A.S.32/08 is preferred against the judgment and decree in O.S.327/06 of the Munsiff, Varkala. By virtue of the said decree the plaintiff has granted a decree for eviction with arrears of rent with a direction to the defendants to surrender possession within three months and in case of failure, to get it evicted through the Court of law. Along with the appeal the defendants filed an application I.A.519/08 for staying the execution of the decree. The Court below dismissed that application on the ground that by virtue of Ext.B1 document the prayer has become infructuous and therefore dismissed the application. It is to review that decision I.A.1444/08 in A.S.32/08 was filed. The Court found that it was an error apparent on the face of record. Therefore reviewed the earlier order and stayed the F.A.O. NO. 300 OF 2008 -:2:- execution of the decree in O.S.327/06 until the disposal of the appeal. Learned counsel in fairness had brought to my notice Ext.B1 communication addressed by the Taluk Supply Officer to advocate G.Dharmajan. What is stated in that letter is regarding the shifting of the depot from the plaintiff's premises. The shifting of the depot will not amount to eviction under due process of law. The two modes of getting the property are, (1) by voluntary surrender by the judgment debtor and (2) getting surrender of the property by filing execution petition under due process of law. It is clear that the execution petition is filed before the trial court to get the property evicted. So under that circumstances the appellate court felt that the earlier order passed by it on the basis of Ext.B1 is incorrect and therefore reviewed it and granted an order of stay against the eviction. I do not find any illegality in such an order but being an appeal for eviction it is desirable that it is disposed of though it is a 2008 appeal. Therefore I dismiss the present FAO and direct the Subordinate Judge, Attingal to dispose of A.S.32/08 within a F.A.O. NO. 300 OF 2008 -:3:- time frame of two months from the date of receipt of a copy of the judgment. The Registry is directed to send a copy of this judgment to the Subordinate Judge, Attingal for compliance. M.N. KRISHNAN, JUDGE. ul/-