IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 OP(C).No. 538 of 2011(O) ------------------------------------- PETITIONERS: --------------------- 1. PANAYULLAKANDI KUNHAMI, W/O.KUNHABDULLA, KOVUMMAL HOUSE, KUTTIADY AMSOM, OORATH DESOM, VATAKARA. 2. KOVUMMAL AMMAD, S/O.KUNHABDULLA, KUTTIADY AMSOM, OORATH DESOM, BY POWER OF ATTORNEY HOLDER, VATTAKKANDY ABOOBACKER, S/O.ABDULLAKUTTY HAJI, POOZHIKKANDAM HOUSE, RAYAROTH AMSOM, KATAVOOR DESOM, KOYILANDY TALUK. 3. DO. SULAIKHA, D/O.KUNHABDULLA, KUTTIADY AMSOM, OORATH DESOM, VATAKARA TALUK. 4. DO. SAINABA, D/O.KUNHABDULLA, KUTTIADY AMSOM, OORATH DESOM, VATAKARA TALUK. 5. DO. MUSTAFA, KUTTIADY AMSOM DESOM, BY POWER ATTORNEY HOLDER VATTAKKANDY ABOOBACKER, S/O.ABDULLAKUTTY HAJI, POOZHIKKANDAM HOUSE, RAYAROTH AMSOM, KATAVOOR DESOM, KOYILANDY TALUK. 6. DO. KUNHIPATHU, D/O.KUNHABDULLA, KORANGATT POOZHIKKANDAM HOUSE, RAYAROTH AMSOM, KATAVOOR DESOM, KOYILANDY TALUK. 7. DO. SAKEERA, D/O.KUNHABDULLA, KOVUMMAL HOUSE, KUTTIADY AMSOM, OORATH DESOM, VATAKARA TALUK. 8. DO. SAMEER, S/O.KUNHABDULLA, DO. BY POWER OF ATTORNEY HOLDER VATTAKKANDY ABOOBACKER, S/O.ABDULLAKUTTY HAJI. OP(C).No. 538 of 2011(O) 9. PUNATHIKANDY NAZAR, S/O.MOOTHAN, KURICHIKAM, P.O. KUTTIADY AMSOM, OORATH DESOM, VATAKARA TALUK. BY SRI.M.C.SEN, SENIOR ADVOCATE, SMT.SHAHNA KARTHIKEYAN. RESPONDENT(S): -------------------------- 1. MUKKATH KOLLANDY ASYA HAJJUMMA, D/O.ALIKUTTY, KUTTIADY AMSOM, THONDIPOYIL DESOM, VATAKARA TALUK – 673 101. 2. ABDUL RASHEED, S/O.MOIDU HAJI, KOODATHIL HOUSE, KUTTIADY AMSOM, OORATH DESOM, VATAKARA TALUK – 673 101. R1 BY SRI.GEORGE THOMAS (MEVADA), SENIOR ADVOCATE. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 538 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 09/12/2010 OF THE MUNSIFF'S COURT IN EA.218/2010. EXT.P2: COPY OF THE ORDER DISMISSING THE APPLICATION IA.1468/2010. RESPONDENT'S EXHIBITS: EXT.R1 A: COPY OF THE ORDER PASSED IN RCR NO.159/2006 DATED 19/02/2010. EXT.R1 B: COPY OF THE ORDER DATED 09/07/2010, UNDERTAKING FILED BY THE 2ND RESPONDENT BEFORE THE HONOURABLE SUPREME COURT THOUGH WITH DELAY OF 42 DAYS. EXT.R1 C: COPY OF THE PLAINT (O.S.58/2010 MUNSIFF COURT NADAPURAM) DATED 15/02/2010. EXT.R1 D: COPY OF THE APPEAL (AS.35/2010 SUBORDINATE JUDGE COURT, VATAKARA) DATED 20/11/2010. EXT.R1 E: COPY OF THE APPLICATION FILED UNDER ORDER 21 RULE 97 OF CPC. DATED 26/11/2010. EXT.R1 F: COPY OF THE MEMORANDUM OF OP(C) NO.461/2011 DATED 31/01/2011. //TRUE COPY// P.S. TO JUDGE rs HARUN-UL-RASHID,J. ------------------------------- O.P.(C). NO. 538 OF 2011 ------------------------------- DATED THIS THE 8TH DAY OF MARCH, 2011 JUDGMENT Petitioners in I.A.No.1468/2010 in A.S.No.38/2010 are the petitioners herein. They filed an application under Order XXI Rule 97 C.PC. in E.P.No.15/06 in RCP.No.20/05 on the file of the Munsiff Court, Nadapuram. The said application is numbered as E.A.No.218/2010. After hearing the parties, the learned Munsiff dismissed E.A.No.218/2010. Petitioners filed A.S.No.38/2010 before the Sub Court, Vatakara and the same was pending consideration before the said court. In the appeal the petitioners filed I.A.No.1468/2010 under Order 41 Rule 5 C.P.C. to stay the delivery of the petition schedule property. The Appellate Court, after considering the matter elaborately, held that the petitioners have not made out sufficient grounds to stay the execution of the order in E.P.No.15/06 in RCP.No.220/2005 and dismissed the said IA. The said order, which is marked as Ext.P2, is under challenge. -2- O.P.(C).No.538/2011 2. The lst respondent is the decree holder and the 2nd respondent is the judgment debtor. The 2nd respondent contested the RCP before all forums including the Apex Court. In SLP Nos.4435- 4436/2010 filed by him challenging the order passed by this Court in the revision, in which eviction of the 2nd respondent from the tenanted premises was confirmed, he undertook before the Apex Court that he shall vacate the tenanted premises within nine months. The undertaking was recorded by the Apex Court in the order dated 9/7/2010. The learned counsel for the lst respondent submits that the undertaking was not honoured by the 2nd respondent, instead at his instance a petition under Order XXI Rule 97 C.PC. was filed by the petitioners herein. The Execution Court elaborately considered the contention of the petitioners and held that the petition is without any merit and therefore the same was dismissed. The learned counsel submits that the Appellate Court by a considered order held that the petitioners have not made out sufficient grounds to stay the execution of the order in E.P.No.15/2006. In these circumstances, the counsel submits that no valid grounds are made out by the petitioners for stay of the -3- O.P.(C).No.538/2011 execution of the order in E.P.No.15/06. This Court is of the view that the writ petition can be disposed of without going into the merits of the contentions of the parties. In view of the fact that the tenant suffered an order of eviction, which was confirmed by the Appellate Court, Revisional Court and the Apex Court and in the light of the contentions raised by the lst respondent that the present petitioners are set up by the 2nd respondent-tenant, I feel that the lst respondent's request for immediate consideration and disposal of the appeal will serve the ends of justice. In these circumstances, this court direct the Sub Court, Vatakara to consider and dispose of A.S.No.38/2010 as expeditiously as possible, at any rate within a period of one month from today. The Appellate Court shall post the appeal on 14th March, 2011. The parties shall appear before the Appellate Court on that day. The interim order passed by this Court shall continue for a period of one month. Original Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.