IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 OP(C).NO. 774 OF 2010(O) -------------------------------------- OS.855/2003 OF MUNSIFF COURT,CHAVAKKAD PETITIONER: -------------------- SHANAVAS, AGED 37, S/O.KERANTAKATH ABDU, MANATHALA VILLAGE, THIRUVATHARA DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SMT.R.PADMAKUMARI RESPONDENT(S): ----------------------- 1. SAFIYA, AGED 44, D/O.THERUVATH AHAMMU, MANATHALA VILLAGE, THIRUVATHARA DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT 680 506. 2. MOIDU, AGED 49, S/O.KUNJI MOIDU, DO. DO.DO. DO. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.774 of 2010 ==================================== Dated this the 18th day of November, 2010 J U D G M E N T Petitioner sued respondents for a decree for prohibitory injunction in O.S. No.855 of 2003 of the court of learned Munsiff, Chavakkad. Respondents resisted the suit and made a counter claim for a declaration of right of way as per a registered deed, mandatory injunction to direct petitioner to remove the obstruction from the said way and for prohibitory injunction. Suit was dismissed and counter claim was decreed in the absence of petitioner on 30.09.2004. Petitioner, learned counsel states, filed application to set aside dismissal of the suit and decree on the counter claim. That application was dismissed by the learned Munsiff as per Ext.P2, order dated 13.06.2006. With 131 days' delay petitioner filed C.M.A. No.204 of 2006 in the court of learned District Judge, Thrissur. Learned counsel states that the delay was condoned and stay of execution was ordered on 15.09.2009. But there was no regular posting of the appeal for sometime and later petitioner learnt that the C.M. Appeal was dismissed for default on 04.06.2010. Learning about that, O.P(C) No.744 of 2010 -: 2 :- petitioner filed Exts.P3 and P4, applications to condone the delay and set aside dismissal of the C.M. Appeal for default. Those applications are posted on 29.11.2010. In the meantime on 10.11.2010 the Amin came to the property to execute the decree. Learned counsel seeks a direction to the learned District Judge to keep in abeyance execution proceedings until Exts.P3 and P4 are disposed of. 2. I have gone through the records placed before me. Having regard to the facts and circumstances of the case I am inclined to keep in abeyance the decree on the counter claim to the extent it related to the mandatory injunction till 29.11.2010 on which date Exts.P3 and P4, applications are coming up for hearing before the learned District Judge. Resultantly, Original Petition is disposed of with a direction to learned Munsiff, Chavakkad to keep in abeyance the decree in the counter claim to the extent it related to the mandatory injunction till 29.11.2010. THOMAS P. JOSEPH, JUDGE. vsv