IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 14105 of 2010(O) -------------------------- OS.348/2008 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: --------------- JESSY W/O.FRANCIS,AGED 49, CHERIYAKRAMKRACHERI,PALLURUTHY,RAMESWARAM VILLAGE KOCHI TALUK. BY ADV. SRI.P.J.JOSEPH PANIKKASSERY RESPONDENTS: --------------- 1. NANCY JOSEPH,W/O.BIJU ZACHARIA, AGED 37,OLAVATHRAKUZHIYIL HOUSE, L.M.PAILY ROAD,VYTTILA, KOZHI - 19, POONITHURA VILLAGE,KANAYANNOOR TALUK. 2. K.R.SAJEEVAN, AGED 41, VARNAM, MOPPILLIL HOUSE,NEXT TO ST.PATRICK CHURCH, S.A.ROAD, JANATHA VILLE, KOCHI-19, POONITHURA VILLAGE,KANAYANNOOR TALUK. ADV. SRI.K.C.CHARLES FOR R1 SRI.M.POLY MATHAI FOR R1 SRI.VIMAL K.CHARLES THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14105 of 2010(O) APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: Petition to set aside exparte decree in O.S.No.348/08 of Sub Court, Ernakulam dt.17/4/2010. EXHIBIT P2: Petition dt.17/4/2010 to condone the delay. EXHIBIT P3: Petition dt.17/4/2010 to stay RESPONDENTS' EXHIBITS:- Nil True copy P.A. to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.14105 of 2010 --------------------------------------- Dated this 02nd day of June, 2010 JUDGMENT Defendant No.2 in O.S.No.348 of 2008 of the court of learned Sub Judge, Ernakulam is petitioner in this proceeding. Respondent No.1 filed a suit for declaration that assignment deed Nos.866 of 1998 and 1560 of 1998 are not binding on respondent No.1 and for injunction. The case was posted for written statement on 05-08- 2008. Court recorded that petitioner and defendant No.1 filed written statement though actually no written statement was filed. An ex parte decree was passed on 16-11-2009. Petitioner approached the vacation court and filed applications to set aside the ex parte decree, condone the delay in filing that application and for stay of execution of the ex parte decree. Since vacation court did not pass any order on the said applications petitioner approached this court under Article 227 of the Constitution. Learned counsel for petitioner would state that the applications are posted in the court of learned Sub Judge for hearing on 11-06-2010. Learned counsel requested that the interim order of stay passed by this court may be extended until disposal of the said application. The request is opposed by counsel for respondent No.1. According W.P.C.14105 of 2010 : 2 : to the learned counsel if the interim order of stay is extended as prayed for by petitioner that would amount to granting stay in the applications pending before learned Sub Judge until disposal of those applications. 2. The proper remedy of petitioner is to seek stay from the court of learned Sub Judge where application for stay along with application to set aside the ex parte decree has already been filed. I do not consider it proper to extend the interim order of stay granted by this court until disposal of the said applications. Having regard to the circumstances I direct that the interim order passed by this court will remain in force till 11-06-2010. I also make it clear that it will be open to the petitioner to seek interim orders, if circumstances warranted on I.A.No.1711 of 2010 filed by the petitioner for stay of execution of the decree pending consideration of learned Sub Judge. With the above direction the writ petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-