IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 29117 of 2009(O) --------------------------------------- OS.453/1997 of II ADDL. MUNSIFF COURT, NEYYATTINKARA OS.293/1990 of MUNSIFF COURT, NEYYATTINKARA .................... PETITIONER(S): -------------------- KESAVAN NADAR,. S/O.RAJAPPAN NADAR, VIRALIVILA VEEDU, KARODE DESOM. BY ADV. MR.L.MOHANAN SMT.LIGEY ANTONY RESPONDENT(S): ------------------------ 1. GNANAMANY NADAR, S/O.NADANKUTTY NADAR, VIRALIVILA THEKKETHATTU VADAKKARIKATHU VEEDU, KARODE DESOM, KARODE PO, NEYYATTINKARA, TRIVANDRUM DISTRICT. 2. ROSILI NADATHI SWARNAM -DO- -DO 3. RAJAMANI D/O.NADANKUTTI NADAR OF -DO- -DO- BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.29117 OF 2009 (O) ----------------------------------- Dated this the 16th day of October, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to issue a writ of certiorari or other appropriate writ, order or direction, calling for the records leading to Ext.P4 and to set aside the same. ii. to issue a writ of mandamus or other appropriate writ, order or direction, directing the court below to dispose A.S.No.125 of 2007 pending before it and in the meanwhile stay the execution of the decree in O.S.No.293 of 1990 on the file of the Munsiff's Court, Neyyattinkara. 2. Petitioner had filed an obstruction petition against the execution of a decree passed in a suit for partition, namely O.S.No.293 of 1990 on the file of the Ist Additional Munsiff WPC.29117/09 2 Court, Neyyattinkara. That petition, after enquiry, was dismissed by the learned Munsiff. An appeal was preferred as A.S.No.125 of 2007 before the Sub Court, Neyyattinkara against the dismissal of his petition. In the appeal, an application for stay was applied for, but, declined by the appellate court. Ext.P4 is that order. Propriety and correctness of Ext.P4 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and, hence, it is dispensed with. The learned counsel for the petitioner submitted after passing of the decree in O.S.No.293 of 1990, without impleading all the sharers having right over the property, another suit had been filed as O.S.No.453 of 1997, in which, the decree holders in the previous suit were also parties, and a decree had been passed binding on them as well. In view of the decree passed in the second suit, superseding the previous decree passed in WPC.29117/09 3 favour of the respondents, his claim over the property was raised by filing an obstruction petition. Without adverting to the claim canvassed with reference to the decree passed in the second suit the learned Munsiff dismissed that petition. Though the appeal preferred has been admitted, in view of the dismissal of the stay petition, the appeal will become infructuous and the valuable rights of the petitioner over the property would be seriously affected, is the submission of the counsel. Having regard to the submissions made and perusing the exhibits produced in the writ petition, I find even in the judgment relied by the petitioner and passed in the second suit, it is made clear that the decree had been granted with direction not to disturb the decree granted in favour of the respondents/plaintiffs in O.S.No.293 of 1990. Operative portion of the judgment in Ext.P2 disclose that the shares of the plaintiff and other defendants in that suit, O.S.No.453 of 1997 are directed to be allotted, from the other portions of the property, which are not set apart to D1 to D3 as per Exts.B1 and B2, the commission report and plan prepared in their suit O.S.No.293 of 1990. When that be so, prima facie, there appears to be no merit in the case canvassed by the petitioner WPC.29117/09 4 by virtue of the decree passed in the second suit the decree granted to respondents/plaintiffs in the previous suit is prejudicially affected. Granting of stay in an appeal falls within the preview of the judicial discretion of the appellate court. I find no impropriety in Ext.P4 order passed by the court below in declining the stay sought for by the petitioner/appellant in the given facts of the case. However, I make it clear that none of the observations made by this Court shall have any influence or bearing in disposing the appeal on its merits. Views expressed by this Court are formed only on a prima facie evaluation of the materials, and submissions made, but, not on the appreciation of the evidence in the case, and so much so, it should not affect the substantive rights of the parties involved in the proceedings. Subject to what is stated above, the writ petition is disposed. S.S.SATHEESACHANDRAN JUDGE prp WPC.29117/09 5