IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 9358 of 2009(O) ---------------------------------- AS.65/1992 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.722/1982 of I ADDL.M.C., NEYYATTINKARA .................... PETITIONERS : ----------------- 1. RAMAN PILLAI NARAYANAN NAIR, ROADARIKATHU PUTHEN VEEDU, GOVINDAMANGALAM, OORUTTAMBALAM P.O., THIRUVANANTHAPURAM. 2. RAMAN PILLAI UNNI PILLAI, AGED 75 YEARS, ROADARIKATHU PUTHEN VEEDU, GOVINDAMANGALAM, OORUTTAMBALAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENTS : ------------------- 1. S.INDIRA DEVI, PERUMPAZHUTHOOR DESOM, NEYYATTINKARA PAKUTY, THIRUVANANTHAPURAM. 2. GANGADHARAN PILLAI SADASIVAN NAIR, PERUMPAZHUTHOOR DESOM, NEYYATTINKARA PAKUTY, THIRUVANANTHAPURAM. 3. INDIRA DEVI JAYAKUMARI, PERUMPAZHUTHOOR DESOM, NEYYATTINKARA PAKUTY, THIRUVANANTHAPURAM. * 4. G.BHASKARAN NAIR, BHASKARA BHAVAN, ERUTHAVOOR, THILAK NAGAR, OORUTTAMBALAM P.O., THIRUVANANTHAPURAM. WP(C).No. 9358 of 2009(O) * 5. SARASWATHI AMMA GEETHAKUMARI, ILLAM PLAMKONAM, MEKKUMKARA PUTHEN VEEDU, KARUMOM P.O., KARIMANAL, THIRUVANANTHAPURAM. * 6. NARAYANA PILLAI KOLAPPAN PILLAI, CHEKKUMMOOTTU ILLAM PLAMKUZHI MEMMUMKARA PUTHEN VEEDU, MARANALLOOR DESOM, KARUMOM P.O., KARIMANAL, THIRUVANANTHAPURAM. * 7. NARAYANA PILLAI VELAYUDHAN PILLAI, CHEKKUMMOOTTU ILLAM PLAMKUZHI MEMMUMKARA PUTHEN VEEDU, MARANALLOOR DESOM, KARUMOM P.O., KARIMANAL, THIRUVANANTHAPURAM. * 8. T.V.PRABHAKARAN NAIR, SHYLA NIVAS, PLAVILA, OORUTTAMBALAM, MARANALLOOR DESOM, THIRUVANANTHAPURAM. * 9. GOPI PILLAI, MADHAVA MANDIRAM, MARANALLOOR DESOM, KARUMOM P.O., KARIMANAL, THIRUVANANTHAPURAM. * 10. P.REMA, CHEKKUMMOOTTU VEEDU, MARANALLOOR DESOM, KARUMOM P.O., KARIMANAL, THIRUVANANTHAPURAM. * 11. RUGMINI AMMA, PRESENTLY RESIDING AT ILAMPLAKENNATHU MEKKUMKARA PUTHEN VEEDU, MARANALLUR DESOM, THIRUVANANTHAPURAM FROM KADUKKAYIL VEEDU, KARUMOM P.O., THIRUVANANTHAPURAM. * 12. CHANDRASEKHARAN NAIR MURALIDHARAN, KADUKKAYIL VEEDU, KARUMOM P.O., THIRUVANANTHAPURAM. * RESPONDENTS 4 TO 12 ARE DELETED AS PER ORDER DATED 27.03.2009 I.A.NO.4551/2009 ADV. SRI.R.S.KALKURA FOR R1 TO R3 SRI.M.S.KALESH FOR R1 TO R3 SRI.HARISH GOPINATH FOR R1 TO R3 SRI.V.VINAY MENON FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------- W.P.(C) No.9358 OF 2009 --------------------------------------- Dated this the 27th day of March, 2009 JUDGMENT Defendants 3 and 5 in O.S.No.722/1982 on the file of the Munsiff's Court, Neyyattinkara are the writ petitioners. The suit was filed by respondents 1 to 3 herein for partition. Final decree was passed on 10.09.1991. The writ petitioners challenged the final decree in A.S.No.65/1992 on the file of the II Additional District Judge, Thiruvananthapuram. The appeal was allowed and the case was remanded to the trial court as per Ext.P3 judgment dated 31.07.1996. The plaintiffs challenged the order of remand in C.M.A.No.311/1996 which was allowed as per Ext.P4 judgment dated 12.06.2007. The judgment of the lower appellate court was set aside and a direction was issued to dispose of the appeal afresh in the light of the observations contained in the judgment of the High Court. 2. After the judgment in C.M.A.No.311/1996, the lower appellate court dismissed the appeal for default as per Ext.P5 judgment dated 20.06.2008. The writ petitioners filed I.A.No.424/2009 to readmit the appeal along with the W.P.(C) No.9358 of 2009 2 application for condonation of delay of 238 days as I.A.No.425/2009 (Exts.P6 and P7). Exts.P6 and P7 are pending disposal. 3. Meanwhile, execution proceedings were initiated and the executing court ordered delivery of the property allotted to the plaintiffs. Delivery was to take place on 24.03.2009, but it did not take place since the writ petitioners obstructed delivery. The executing court has now passed an order to deliver the property on 04.04.2009 with police aid. At that juncture, this writ petition is filed for the following reliefs : (i) direct the Court of the 2nd Additional District Judge, Thiruvananthapuram, to dispose of Exhibits P6 and P7 Petitions expeditiously, at any rate within a time frame to be fixed by this Hon'ble Court; (ii) direct the Court of the 1st Additional Munsiff, Neyyattinkara, to dispose off Exhibits P8 and P9 Petitions expeditiously, at any rate within a time frame to be fixed by this Hon'ble Court; (iii) direct the Court of the 1st Additional Munsiff, Neyyattinkara, to keep in abeyance all further proceedings in E.P.No.85 of 2009 in O.S.No.722 of 1982; and (iv) Grant such other and further reliefs that are W.P.(C) No.9358 of 2009 3 deemed fit in the facts and circumstances of this case.” 4. Though there could be a direction to the appellate court to dispose of the application for re-hearing and the application for condonation of delay in filing the application for re-hearing, there is no justification for staying the execution proceedings pending disposal of the applications by the lower appellate court. The suit was filed in 1982 and the final decree was passed in 1991. Respondents 1 to 3 cannot be denied the fruits of the decree at this juncture. Delivery of the property has to take place as scheduled by the executing court. Then what relief is to be granted to the petitioners is the question. I think a direction can be issued to the District court to consider and dispose of I.A.Nos.424/2009 and 425/2009 expeditiously and at any rate on or before 30.06.2009. 5. The learned counsel for the petitioners pointed out that it becomes necessary to demolish a portion of the building in the decree schedule property for providing convenient access to the plot allotted to the plaintiffs. If the demolition takes place, the counsel submits that the writ petitioners would be put to great prejudice. The learned counsel for the decree holders submitted that the land where the portion of W.P.(C) No.9358 of 2009 4 the building stands is also allotted to the plaintiffs. Considering the entire facts and circumstances of the case, the writ petition is disposed of as follows : 1. The lower appellate court shall dispose of I.A.Nos.424/2009 and 425/2009 expeditiously and at any rate on or before 30.06.2009. 2. The executing court shall effect delivery of the property allotted to the plaintiffs as scheduled. 3. The writ petitioners undertake that they will not cause any obstruction to the smooth delivery of the property to the decree holders. This undertaking is recorded. 4. After delivery, there shall be no demolition of the portion of the building for providing access to the property allotted to the decree holders pending disposal of I.A.Nos.424/2009 and 425/2009 in A.S.No.65/1992 of District Court, Thiruvananthapuram. K.T.SANKARAN JUDGE pac