IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).No. 22637 of 2010(O) -------------------------- AGAINST THE ORDER DATED 16/08/2001 IN EP.56/2006 IN OS.179/1995 of SUB COURT, KASARAGOD .................... PETITIONER: --------------- RADHAKRISHNA, AGED 29 YEARS, S/O.BABU, RESIDING AT MYLATTY, BARE VILLAGE, MYLATTY P.O., KASARGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENTS: --------------- 1. RADHAMMA, DAUGHTER OF MUTHAYYA, RESIDING AT NEKLI HOUSE, BARE VILLAGE, KASARGOD DISTRICT-671 319. 2. MANJUNATHA, SON OF MUTHAYYA, EROLE RESIDING AT NEKLI HOUSE, BARE VILLAGE, KASARGOD DISTRICT-671 319. 3. PADMAVATHI, W/O.THIMMAYYA, RESIDING AT KAMMAYI HOUSE, PUTHUR TALUK, SOUTH CANARA DISTRICT-678 005. 4. PREMA, W/O.NARAYANA, RESIDING AT MYLATTI, HOSDURG TALUK, KASARGOD DISTRICT-671 319. 5. VINU, S/O.NARAYANA, RESIDING AT MYLATTI, HOSDURG TALUK, KASARGOD DISTRICT- 671 319. 6. SATHEESHAN, S/O.NARAYANA, RESIDING AT MYLATTI, HOSDURG TALUK, KASARGOD DISTRICT- 671 319. 7. PRASHANTH, S/O.NARAYANA, RESIDING AT MYLATTI, HOSDURG TALUK, KASARGOD DISTRICT- 671 319. 8. PRABHAVATHI, D/O.NARAYANA, RESIDING AT MYLATTI, HOSDURG TALUK, KASARGOD DISTRICT- 671 319. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.22637 of 2010 --------------------------------------- Dated this 20th day of July, 2010 JUDGMENT Petitioner is one of the legal heirs of defendant No.1 in O.S.No.179 of 1995. That is a suit for partition filed by respondent No.1 against defendant No.1 and respondent Nos.2 to 8. There was an ex parte preliminary decree passed on 01.11.1997. Respondent No.1 filed application for passing final decree. On that application defendant Nos.1, 2 and 4 remained absent and were set ex parte. While so there was a compromise between respondent No.1 and defendant No.3 and accordingly a final decree was passed on 16.08.2001. Defendant No.1, predecessor-in-interest of petitioner claiming that he was not served with summons in the suit or notice on the application for final decree and that he learned about those decrees only when notice of execution petition was served on him filed I.A.Nos.648 of 2006 to set aside the ex parte decree and I.A.No.647 of 2006 to condone the delay. He has a contention that the compromise final decree takes in even his self acquired property. Pending decision on I.A.Nos.647 and 648 of 2006 defendant No.1 expired and petitioner and other legal representatives were impleaded in W.P.C.No.22637 of 2010 : 2 : I.A.No.647 of 2006. I.A.Nos.647 and 648 of 2006 were dismissed on 26-06-2010. 2. Grievance of petitioner is that though he has applied for a copy of the said orders, it is not so far given to him and in the meantime the executing court has ordered delivery on 26-06-2010 and to report on 27-07-2010. According to the petitioner if before he challenged dismissal of I.A.Nos.647 and 648 of 2006 delivery is effected, that will cause much hardship and inconvenience to him and other legal heirs of deceased defendant No.1. Learned counsel therefore seeks a direction to the learned Sub Judge. Kozhikode to issue copy of I.A.Nos.647 and 648 of 2006 and in the meantime direct that delivery of property may be kept in abeyance. Having regard to the circumstances stated above, I am inclined to issue a direction as prayed for. Since in the meantime if delivery is effected petitioner will be put to difficulties, it is only just and proper that delivery is effected only after a period of two weeks from this day. Resultantly, this writ petition is disposed of in the following lines: (i) Learned Sub Judge, Kozhikode is directed to issue copy of order dated 26-06-2010 on I.A.Nos.647 and 648 of 2006 in W.P.C.No.22637 of 2010 : 3 : O.S.No.179 of 1995 as early as possible, at any rate within two weeks from the date of receipt of copy of this judgment if copy of the order is applied for by the petitioner. (ii) Delivery of property in execution of the decree in E.P.No.56 of 2006 in O.S.No.179 of 1995 of the said court shall stand in abeyance for a period of two weeks from the date of receipt of a copy of this judgment. (THOMAS P JOSEPH, JUDGE) Sbna/-