IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 OP(C).No. 723 of 2011(O) IA 134/2011 IN CMA.1/2011 OF PRINCIPAL SUB COURT,KOCHI OS.332/2010 OF MUNSIFF'S COURT, KOCHI PETITIONERS ------------------------------- 1. JACOB, AGED ABOUT 55, SON OF JOSE, RESIDING AT CHETTIPARAMBIL HOUSE, PUTHUVYPE, VYPEEN. 2. BIJU, AGED ABOUT 33, SON OF JACOB, RESIDING AT CHETTIPARAMBIL HOUSE, PUTHUVYPE, VYPEEN, REPRESENTED BY HIS AUTHORIZED AGENT AND FATHER MR.JACOB. 3. BAIJU, AGED ABOUT 30, SON OF JACOB, RESIDING AT CHETTIPARAMBIL HOUSE, PUTHUVYPE, VYPEEN. 4. JIJO, AGED ABOUT 27, SON OF JACOB, RESIDING AT CHETTIPARAMBIL HOUSE, PUTHUVYPE, VYPEEN, REPRESENTED BY HIS AUTHORIZED AGENT AND FATHER MR.JACOB. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT: --------------- SATHEESAN.A.K, AGED 45, SON OF LATE KRISHNAN, ANCHALASSERY HOUSE, ELAMKUNNAPUZHA, VYPEEN-682 503. ADV. SRI.B.KRISHNA MANI THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 723 OF 2011 O ------------------------------------------------------ Dated this the 25th day of February, 2011 JUDGMENT The petitioners are the defendants in O.S.No.332 of 2010 on the file of the Munsiff's Court, Kochi. The suit was filed by the respondent for mandatory injunction directing the defendants to remove the plaint 'E' schedule fence and for a decree of permanent prohibitory injunction restraining the defendants from obstructing the enjoyment of plaint 'C' schedule pathway especially the plaint 'D' schedule for the ingress and egress from the plaint 'A' schedule property. 2. I.A.No.1809 of 2010 was filed by the plaintiff for an interim mandatory injunction. The trial court, as per Ext.P11 order dated 18.12.2010, allowed the application. The operative portion of the order reads as follows: “In the result, the petition is allowed on the following terms:- The respondents/defendants are directed to O.P.(C) NO.723 OF 2011 :: 2 :: dismantle and to remove the fence to a length of two feet from the western extremity of the northern fencing in the plaint schedule property and to remove the fencing to a length of 2 feet from the south-eastern portion of plaint A schedule property which abuts the eastern fencing of the property of Sri.Karthikeyan and to remove the poopparathi logs collected in the B schedule through the portion through which the D schedule is passing within 30 days from today through a temporary mandatory injunction. On failure the plaintiff is entitled to execute the order, through the process of the court and to realise the costs of the same from the defendants. Plaintiff is also entitled to the costs of the petition.” 3. Challenging the order dated 18.12.2010 passed by the trial court, defendants 1 and 3, who are petitioners 1 and 3 herein, filed C.M.A.No.1 of 2011 before the Court of the Subordinate Judge, Kochi. Along with the appeal, the appellants therein filed I.A.No.134 of 2011 to stay all further proceedings in I.A.No.1809 of 2010. The grievance of the petitioner is that the court below has not passed any order in I.A.No.134 of 2011. 4. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondent. O.P.(C) NO.723 OF 2011 :: 3 :: In the facts and circumstances of the case, the Original Petition is disposed of directing the learned Subordinate Judge, Kochi to consider and dispose of I.A.No.134 of 2011 in C.M.A.No.1 of 2011, as expeditiously as possible, after affording an opportunity of being heard to both parties. If the Sub Court feels that an ad interim order should be granted, that also can be considered. It is made clear that I have not expressed any opinion on the merits of the case. (K.T.SANKARAN) Judge ahz/