IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 OP(C).No. 191 of 2010(O) ------------------------ AGAINST THE ORDER DATED 23 /9 /2010 IN EP 182/2009 IN OS.793/2006 of PRL.M.C.,ERNAKULAM .................... PETITIONER: -------------------- VIKRAMAN, AGED 44 YEARS, S/O.GOPALAN, RESIDING AT KADEPPARAMBIL HOUSE, PEELIYADU ROAD, PONEKKARA, ELAMAKKARA PO, ERNAKULAM. BY ADV. SMT.MEREENA JOSEPH RESPONDENTS: ------------------------- 1. JOSEPHINA, AGED 47 YEARS, W/O.JAMES, VETTASSERY HOUSE, BOAT JETTY ROAD, VADUTHALA, ERNAKULAM,KOCHI-682023. 2. SUJATHA, AGED 41 YEARS, W/O.VIKRAMAN, RESIDING AT KADEPPARAMBIL HOUSE, PEELIYADU ROAD, PONEKKARA, ELAMAKKARA PO, ERNAKULAM-682 017. BY ADVS. SRI.A.BALAGOPALAN FOR R1 SRI.A.RAJAGOPALAN FOR R1 SRI.K.SANEESH KUMAR FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 191 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE EXECUTION PETITION FILED BEFORE THE MUNSIFF'S COURT, ERNAKULAM EXT.P2 : COPY OF THE APPLICATION FILED IN E.P.NO.182/2009 EXT.P3 : COPY OF THE COPY OF THE REPORT OF THE COMMISSIONER IN E.A. No.475/2009 IN E.P.No.182/2009 ON THE FILES OF THE MUNSIFF'S COURT, ERNAKULAM EXT.P3(a) : COPY OF THE ORDER DATED 2.6.2010 IN E.P.No.182/2009 ON THE FILES OF THE MUNSIFF'S COURT, ERNAKULAM. EXT.P4 : COPY OF THE BALANCE STATEMENT FILED BY THE DECREE HOLDER IN E.P.No.182/2009 ON THE FILES OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM. EXT.P5 : COPY OF THE REVIEW PETITION FILED BEFORE THE EXECUTING COURT AS E.A.No.457/2010 IN E.P.No.182/2009 ON THE FILES OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM. EXT.P6 : COPY OF THE ORDER OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM DATED 23.9.2010. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Kp THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No. 191 of 2010 --------------------------------------- Dated this 08th day of July, 2011 JUDGMENT Petitioner is the first judgment debtor, in E.P.No.182 of 2009 in O.S.No.793 of 2006 of the Court of learned Principal Munsiff, Ernakulam. That Court passed a decree restraining petitioner, other defendants and their men and agents from reclaiming any portion of the river on the western side of the suit property belonging to the first respondent. Certain other reliefs were also granted which included recovery of possession of plaint B schedule. In execution the first respondent got recovery of possession of plaint B schedule and while the execution petition was pending, alleging that injunction part of the decree was violated by petitioner, first respondent filed applications in the execution petition for removal of the obstruction and the obstruction was removed with the assistance of police and in the presence of the Advocate Commissioner. Executing court permitted first respondent to realise the cost he incurred in causing removal of obstruction. That amounted to more than `.9,000/-. For the said amount, warrant of arrest was issued to the petitioner. Since petitioner failed to show cause, he was O.P(C).No.191 of 2010 -: 2 :- arrested and brought before Court. He paid `.6,000/- to the first respondent. He was released on kaichit. Later, there appears to have been a settlement between the parties in the executing court as per which the balance amount payable to the first respondent was fixed as `.7,000/-. Petitioner later filed application for review of the orders on E.A.No.557 of 2010. That application did not find favour with the executing court. The orders dated 02.06.2010 and 23.09.2010 are under challenge. 2. Though, various contentions are raised by petitioner to the execution proceeding itself, when the matter came up for hearing, learned counsel for petitioner has confined the request to keep in abeyance the warrant of arrest issued to the petitioner for some time. Learned counsel submitted that petitioner has challenged the ex parte judgment and decree in appeal and applied for stay of execution. It is pointed out that since the appeal is preferred with delay of about 800 days, application for stay could not be taken up for orders. It is also pointed out that first respondent has already entered appearance in the application to condone the delay. Learned counsel requested that warrant of arrest may be kept in abeyance till the application of stay is disposed of by the appellate court. Learned counsel for first respondent submitted that of the amount due by way of cost O.P(C).No.191 of 2010 -: 3 :- and charge for restoration of the property, petitioner has already paid `.6,000/- and the balance payable was fixed by settlement at `.7,000/-. In such situation, there is no justification of the request to keep warrant of arrest in abeyance. 3. However, since petitioner has already challenged the judgment and decree in appeal, though, with an application to condone the delay and also requested for stay of proceeding, I am inclined to think that petitioner must be given some time so that petitioner can move the application for stay said to be preferred in the appeal. For the said purpose I am inclined to direct that warrant of arrest issued to the petitioner will stand in abeyance for some time. Resultantly this original petition is disposed of directing that warrant of arrest issued to the petitioner/judgment debtor No.1 in E.P.No.182 of 2009 in O.S.No.793 of 2006 of the Court of learned Principal Munsiff, Ernakulam will stand in abeyance for a period of two months from this day or till the appellate court disposed of the application for stay in the appeal preferred by petitioner against ex parte judgment and decree, whichever is earlier. (THOMAS P JOSEPH, JUDGE) Sbna/-