IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 9847 of 2009(O) OS.526/2004 of ADDL.MUNSIFF'S COURT, KOTTAYAM PETITIONER: LALITHA V.NAIR, MEMBER OF WARD NO.9 OF PANACHIKKADU GRAMA PANCHAYTH, RESIDING AT AMBATTU HOUSE, PANACHIKKADU KARA, PANACHIKKADU VILLAGE,KOTTAYAM DISTRICT. BY ADV. SRI.C.S.MANILAL RESPONDENTS: 1. K.SASIKUMAR,S/O.KARUNAKARA PANICKER, VRINDAVANAM HOUSE, PANACHIKKADU KARA, PANACHIKKADU VILLAGE, KOTTAYAM. 2. K.SETHUNATH,VRINDAVANAM HOUSE, PANACHIKKADU, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, S.LAXMIKUMARI, VRINDAVANAM PANACHIKKADU VILLAGE KOTTAYAM. 3. THE PANACHIKKADU GRAMA PANCHAYATH, REPRESENTED BY THE SECRETARY, PANACHIKKADU KOTTAYAM. 4. P.K.GOPALAKRISHNAN NAIR, S/O.KRISHNAPILLAI, PALLATHARA HOUSE, PANACHIKKADU VILLAGE, KOTTAYAM. 5. P.K.VIJAYAKUMAR, S/O.MANIYAN, PALLATHARA HOUSE, PANACHIKKADU, KOTTAYAM. 6. IPE ABRAHAM,S/O.KUNJAPPAN, MALLIYIL HOUSE,PANACHIKKADU,KOTTAYAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 9847 OF 2009 O ------------------------------------------------------ Dated this the 26th March, 2009 JUDGMENT The petitioner is the second defendant in O.S.No.526 of 2004, on the file of the Court of the Additional Munsiff of Kottayam. The suit was filed by respondents 1 and 2 for declaration and mandatory injunction. The suit was decreed on 31.10.2006. The operative portion of the judgment reads as follows: “In the result, the suit is decreed as follows: 1. The plaintiffs title over plaint item No.2 property is declared. 2. Defendants 2 to 5 are directed by a decree of mandatory injunction to re-instate the compound wall that existed in plaint item No.2 property within three months from this date and on failure the plaintiffs are allowed to construct the same and realise the cost from defendants 2 to 5 and their assets. 3. Defendants 2 to 5 are restrained by a decree of permanent prohibitory injunction from trespassing into plaint item No.2 property and from effecting any construction therein or from altering the lie and nature of the same. 4. Ext.C1(A) plan be appended along with the decree. 5. In view of the facts and circumstances of the suit defendants 2 to 5 are directed to pay the cost of the suit to the plaintiffs.” W.P.(C) NO.9847 OF 2009 :: 2 :: 2. The decree holders filed Execution Petition dated 15.11.2008. The petitioner filed Ext.P3 application dated 13.2.2009 for setting aside the exparte decree against her. Ext.P4 application was filed by the petitioner along with the application under Order IX Rule 13 of the Code of Civil Procedure, seeking to condone the delay of 833 days. Exts.P3 and P4 applications are pending. 3. Meanwhile, in the execution proceedings, the court below passed an order on 4.3.2009 appointing an Advocate Commissioner and Surveyor to supervise the construction of the compound wall. The apprehension of the petitioner is that the decree will be executed and the compound wall will be constructed during summer holidays, while the application filed by her to set aside the exparte decree and the application for condonation of delay are not being disposed of. 4. The petitioner is a member of the Panchayat. There are five defendants in the suit. The Panchayat contested the case. However, defendants 2 to 5 were set exparte. The judgment and decree were passed by the trial court after contest. It cannot be said that the decree against the first defendant was an exparte decree. In these circumstances, the prayer made by the petitioner to keep in abeyance the execution proceedings is not just and reasonable. The petitioner has W.P.(C) NO.9847 OF 2009 :: 3 :: prayed for a direction to the trial court to consider and dispose of Exts.P3 and P4 applications. Exts.P3 and P4 applications were filed only in February, 2009. It is not clear whether the service of notice is complete. I do not think, any specific direction is necessary to the trial court to consider Exts.P3 and P4 applications. If the petitions are ripe for hearing, the petitioner may move the trial court for an early hearing. I do not think, it is necessary to admit the Writ Petition, as the main relief sought for in the Writ Petition is unsustainable. Accordingly, the Writ Petition is dismissed. (K.T.SANKARAN) Judge ahz/