IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 OP(C).No. 2356 of 2011(O) ------------------------------------- I.A.NO.202/2010 IN AS.NO. 6/2010 of PRL.SUB COURT, KOZHIKODE .................... PETITIONER -------------------- 1. VELIYANCHERI SANTHAKUMARI, D/O.CHATHU, R/A.VELIYANCHERI HOUSE, KASABA AMSOM DESOM OF KOZHIKODE TALUK 2. VELIYANCHERI SREELAL @ LALU, AGED 40 YEARS, S/O.VELAYUDHAN, R/A.VELIYANCHERI HOUSE, KASABA AMSOM DESOM OF KOZHIKODE TALUK 3. VELIYANCHERI SHAJITH @ SHAJI, AGED 36 YEARS, S/O.VELAYUDHAN, R/A.VELIYANCHERI HOUSE, KASABA AMSOM DESOM OF KOZHIKODE TALUK 4. VELIYANCHERI SHANOJ, S/O.VELAYUDHAN, R/A.VELIYANCHERI HOUSE, KASABA AMSOM DESOM OF KOZHIKODE TALUK BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): ---------------------------- 1. MANDAYAPURATH AHAMMED MOOPAN, S/O.BAVUNNI MOOPAN,R/A.KALPAKANCHERY AMSOM DESOM OF TIRUR TALUK,POST KALPAKANCHERY MALAPPURAM DISTRICT,PIN-676 551 2. A.P.HEERA, D/O.ABDUL HAMEED HAJI, R/A.KALPAKANCHERYAMSOM DESOM OF TIRUR TALUK, POST KALPAKANCHERY,MALAPPURAM DISTRICT, PIN-676 551 R1 & R2 BY ADV. SRI.P.A.ABDUL JABBAR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2356/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE MEMORANDUM OF APPEAL AS AS.NO.274/09. P2 COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE PETITION SEEKING SUSPENSION OF THE DECREE. P3 COPY OF THE COUNTER FILED TO I.A.NO.202/10. P4 COPY OF THE PETITION IN E.P.198/10. P5 COPY OF THE COUNTER IN E.P.198/10. P6 COPY OF THE ORDER IN IA 202/10 DATED 8/7/2011. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE INTERIM INJUNCTION ORDER PASSED IN O.S.NO.163/07 OF MUNSIFF COURT-II, KOZHIKODE. R1(B) COPY OF THE JUDGMENT PASSED IN O.S.NO.163/07 OF MUNSIFF COURT-II, KOZHIKODE. /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2356 of 2011 --------------------------------------- Dated this 24th day of August, 2011 JUDGMENT Respondents appear through counsel. 2. This original petition is in challenge of Ext.P6, order on I.A.No.202 of 2010 in A.S.No.6 of 2010 of the Court of learned Principal Sub Judge, Kozhikode. That appeal is against the judgment and decree restraining petitioners obstructing the respondents using plaint C schedule way. In the appeal, petitioners filed I.A.No.202 of 2010 to suspend the decree contending that respondents have only a right of access through plaint C schedule but, they have no right to take vehicles through the said way. That application was dismissed by the learned Sub Judge, which is under challenge. 3. When this matter came up for hearing it is submitted by counsel on both sides that the appeal is posted for hearing on 08.11.2011 and that there may be a direction for early disposal of the appeal. Learned counsel for petitioners pointed out that respondents have filed application for execution of the decree under Order XXI, Rule 32 of the Code of Civil Procedure (for short, "the Code”) and that if in the meantime execution O.P(C).No.2356 of 2011 -: 2 :- proceeds, petitioners will be put to irreparable loss and injury. Learned counsel for respondents pointed out that after the decree was passed, petitioners have removed a few slabs kept on the drain towards northern side of plaint C schedule way and planted certain arecanut plants. 4. Having heard learned counsel on both sides, I consider that the appropriate course is to direct learned Sub Judge to dispose of the appeal as early as possible and in the meantime direct the parties to maintain the present condition of plaint C schedule way and the drain on its northern side as reported by the Advocate Commissioner (also noting the contention of respondents that petitioners have (allegedly) removed certain slabs kept over the drain). Resultantly this original petition is disposed of as follows: (i) Learned Principal Sub Judge, Kozhikode is directed to dispose of A.S.No.6 of 2010 as early as possible having regard to the urgency of the matter, within three months from the date of receipt of a copy of this judgment. (ii) Parties are directed to maintain the condition of plaint C schedule way and the drain on its northern side as reported by the Advocate Commissioner in Exts.C3 and C4, plan (while bearing in mind the contention of respondents O.P(C).No.2356 of 2011 -: 3 :- that petitioners have, after the decree, removed certain slabs kept over the drain on the northern side of plaint C schedule way). (iii) It is made clear that the above direction does not mean that petitioners are to restore the slabs allegedly removed from the drain until the appeal is disposed of. (iv) The above arrangement will remain in force until the appeal is disposed of. (THOMAS P JOSEPH, JUDGE) Sbna/-