IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 OP(C).No. 1743 of 2011(O) -------------------------------------- AS.NO.94/2010 of ADDL.DISTRICT COURT, THRISSUR OS.NO. 1966/2007 of II ADDL.MUNSIFF COURT,THRISSUR .................... PETITIONER ---------------------- SREEDHARAN, S/O.AYYAPPAKUTTY, THAIVALAPPIL HOUSE, AYYANTHOLE, THRISSUR DT. BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT(S): ----------------------------- 1. GOPALAKRISHNAN T.A., S/O.THAIVALAPPIL AYYAPPAKUTTY, CHETTUPUZHA, (PO) PULLAZHI, THRISSUR DT.PIN-680 012 2. AJAYAN T.A., S/O.THAIVALAPPIL AYYAPPAKUTTY, --DO--. 3. MRS.OMANA, W/O.V.B.POURAN, CHAKKARAMELIL APARTMENT, FLAT NO.5, CHEMBUKKAVU, THRISSUR DT.PIN-680 001 4. MRS.T.A.KUMARI,W/O.CHEMBIPARAMBIL ASOKAN, (PO) NATTIKA, THRISSUR DT.PIN-680 566 5. MRS.T.A.SUMATHI, W/O.M.N.SUDHAKARAN, MUTHIRAKKALAYIL HOUSE, S.N.PARK, (PO) ARANATTUKARA, THRISSUR DITRICT.PIN-680 618 R1 & R2 BY ADV. SRI.K.A.SATHEESA BABU THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.1743/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE DECREE IN OS NO.1966/2007 OF MUNSIFF'S COURT, THRISSUR. P2 COPY OF THE APPLICATION I.A.NO.634/2010 IN A.S.NO.94/2010 BEFORE THE DISTRICT.COURT, THRISSUR,FILED BY THE FIRST AND SECOND RESPONDENTS. P3 COPY OF THE STAY ORDER IN I.A.NO.634/2010 IN A.S.NO.94/2010 PASSED BY THE DIST.COURT, THRISSUR. P4 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP(C)NO.8970 OF 2010 DATED 29/11/2010. P5 COPY OF THE CLARIFICATION PETITION FILED BY THE PETITIONER IN I.A.NO.4078/2010 BEFORE THE DIST.COURT,THRISSUR. P6 COPY OF THE COUNTER FILED BY THE 1ST AND 2ND RESPONDENTS AGAINST THE EXT.P5. P7 COPY OF THE ORDER IN I.A.NO.4078/2010 IN I.A.NO.634/2010 IN A.S.NO.94/2010 DATED 24/3/2011 OF THE DIST.COURT, THRISSUR. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1743 of 2011 ==================================== Dated this the 28th day of October, 2011 J U D G M E N T Respondents 1 and 2 appear through counsel. Respondents 3 to 5 are served, but there is no response. 2. Challenge in this petition is to Ext.P7, order passed by the learned First Additional District Judge, Thrissur on I.A. No.4078 of 2010 in I.A. No.634 of 2010 in A.S No.94 of 2010. Respondents 1 and 2 challenged the preliminary decree for partition granted by the learned Munsiff, Thrissur in O.S. No.1966 of 2007 in A.S. No.94 of 2010 of the court of learned District Judge. They also filed Ext.P2, application for passing a final decree. Learned District Judge passed Ext.P3, order that interim stay is granted until further orders. Petitioner wanted to proceed with the final decree proceedings but learned Munsiff was not inclined to entertain the same on the ground that there is a stay of the final decree proceedings as well. At that stage, petitioner approached this Court with O.P(C) No.8970 of 2010 seeking a clarification. This Court by Ext.P4, judgment directed petitioner to seek clarification from the learned District Judge who passed O.P(C) No.1743 of 2011 -: 2 :- Ext.P3, order. Pursuant to Ext.P4, judgment petitioner filed I.A. No.4078 of 2010 for clarification as to Ext.P3, order whether stay is only with respect to passing of final decree or it related to the proceedings for passing the final decree. Learned District Judge came out with Ext.P7, order stating that the stay granted as per Ext.P3, relates to all proceedings in the final decree. That order is under challenge. 3. I have heard petitioner and respondents 1 and 2. According to the learned counsel for respondents 1 and 2, the appeal itself could be disposed of as early as possible and it is not necessary to interfere in the matter. 4. Exhibit P3, order so far as I can understand only grants stay of passing the final decree since in Ext.P2, application that alone was the prayer. There is no reason to think that learned District Judge has granted a relief wider than prayed for in Ext.P2, application. Therefore learned District Judge was wrong in passing Ext.P7, order. In that view of the matter Ext.P7, order has to go and it is to be made clear that Ext.P3, order is only a stay against passing of the final decree. Original Petition is allowed. Exhibit P7, order is set aside. It is clarified that the stay granted by the learned District Judge as O.P(C) No.1743 of 2011 -: 3 :- per Ext.P3, order is only against passing final decree in the case and that there is no bar in proceeding with the proceedings for passing final decree. Parties may request the learned District Judge to dispose of the appeal as early as possible if circumstances warranted that. THOMAS P. JOSEPH, JUDGE. vsv