IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 OP(C).No. 486 of 2010(O) ------------------------ OS.45/1998 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER: ------------------------------ KUNJIPPENNU PARVATHI, AGED 93, NIKARTHIL, PANAVALLY, CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENTS: --------------- 1. SAHADEVAN, S/O.PADBHANABHAN, ASARIPARAMPIL, THURUTHI BHAGAM MURI,AROORKUTTY, CHERTHALA, ALAPPUZHA-688535. 2. SAROJINI, W/O.SURENDRAN, PEEDIKAPPARAMBIL, THANDAMKARIYIL, UDAYANAPURAM P.O., VAIKOM, KOTTAYAM- 686 143. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 486 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : JUDGMENT IN W.P.C.No.26583 OF 2009 DATED 06-10-2009 EXHIBIT P2 : E P No.120/2010 IN O.S.No.45/1998 DATED 15-06-2010 EXHIBIT P3 : OBJECTION OF THE RESPONDENT IN O.S.No.45/1998 OF THE MUNSIFF COURT, CHERTHALA EXHIBIT P4 : ORDER IN E P No.120/2010 IN O.S.No.45/1998 DTD 09-09-2010 RESPONDENTS' EXHIBITS: NIL True Copy THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.486 of 2010 --------------------------------------- Dated this 12th day of November, 2010 JUDGMENT Petitioner, I am told is a 93 year old lady eagerly waiting to get the fruits of decree for partition passed she has secured. Preliminary decree was passed on 22-06-1999. Though respondent No.1 preferred an appeal, the decree was confirmed with some modification on 07-01-2004. Petitioner filed I.A.No.2980 of 2004 for passing a final decree. Respondent No.1 submitted in the court below that a second appeal (R.S.A.No.651 of 2004) has been filed against decision of the first appellate court and that R.S.A was not admitted since there was some delay in filing that appeal. The court therefore did not take further proceedings in the matter. At that stage petitioner approached this court with W.P.C.No.26583 of 2009 and this court by order dated October 6, 2009 directed learned Munsiff to dispose of final decree proceedings specifying a time limit. Thereafter proceeding took momentum and a final decree was passed. Petitioner filed execution petition for delivery of property. Respondent Nos.1 and 2 again represented in court about pendancy of R.S.A.No.651 of 2004 (which I am told has not so far been admitted due to pendancy of the application to condone O.P(C).No.486 of 2010 : 2 : the delay) and thereon learned Munsiff passed Ext.P4, order to wait for orders from R.S.A.No.651 of 2004. 2. Notice of this petition was issued to the respondents but there is no response in spite of service. I heard learned counsel for petitioner. Learned counsel states that mere filing of the appeal does not amount to a stay as made clear under Rule 5 of Order XLI of the Code of Civil Procedure. In the present case R.S.A.No.651 of 2004 has not even so far been admitted on account of pendancy of application to condone the delay. In such a situation, considering the fact that petitioner is aged about 93 years and her desire to enjoy the fruits of the decree atleast in her old age cannot be discarded, I direct learned Munsiff to proceed with the proceedings unless there is an order from the superior courts preventing such proceedings. Resultantly this petition is allowed and Ext.P4, order is set aide. Learned Munsiff is directed to proceed with the execution petition unless there is any stay or injunction issued from a superior court, in the matter. Learned Munsiff is directed to expedite the proceedings. (THOMAS P JOSEPH, JUDGE) Sbna/-