IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 WP(C).No. 27962 of 2008(D) -------------------------- AGAINST THE ORDER DATED 19/06/2008 IN EP 61/2007, IN OS.709/1998 of M.C.,VADAKKANCHERRY .................... PETITIONER: ----------------------- MANIKANDAN, S/O.THRITHALAPARAMBIL AYYAPPAN, AGED 46 YEARS, ATTOR VILLAGE, DESOM, TALAPPILLY TALUK. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENTS(S): --------------------------- 1. BALAN, S/O.KAVUNGALPARAMBIL LATE MUKAMI, NEMINI AMSOM, SULTHAN BATHERI TALUK. 2. PRABHAKARAN, S/O.KAVUNGALPARAMBIL LATE MUKAMI, NEMINI AMSOM, SULTHAN BATHERI TALUK. 3. THANKAMALU, D/O.THRITHALAPARAMBIL RAMAN, ATTOOR VILLAGE, DESOM, TALAPPILLY TALUK. 4. JANAKI, D/O.THANKAMALU, ATTOOR VILLAGE, DESOM, TALAPPILLY TALUK. 5. KALYANI, D/O.THANKAMALU, ATTOOR VILLAGE, TALAPPILLY TALUK. 6. RAJAN, S/O.KALYANI, ATTOOR VILLAGE, DESOM, TALAPPILLY TALUK. 2 7. MURALI, S/O.KALYANI, ATTOOR VILLAGE, DESOM, TALAPPILLY TALUK. 8. VENUGOPALAN, S/O.KALYANI, ATTOOR VILLAGE DESOM, TALAPPILLY TALUK. 9. MANOHARI @ AMMINI, D/O.KALYANI, ATTOOR VILLAGE, DESOM, TALAPPILLY TALUK. 10. ANITHA, D/O.KALYANI, ATTOOR VILLAGE, DESOM, TALAPPILLY TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.27962 of 2008 = = = = = = = = = = = = = = Dated this the 22 nd day of September, 2008 JUDGMENT Petitioner, who is the 4th defendant in the suit namely O.S.No.709 of 1998 on the file of the Munsiff's Court, Wadakkanchery which was a suit for partition, challenges Ext.P8 order as per which the learned Munsiff dismissed his application E.A.No.583 of 2007 for a stay of all further proceedings in E.P.No.61 of 2007. Admittedly the petitioner was ex-parte both in the preliminary decree as well as in the final decree. He claims to have filed Ext.P2 petition to set aside ex-parte preliminary decree passed on 13.7.99 and also to set aside the final decree passed on 28.2.01 with a petition to condone the delay of 2976 days. It is not clear whether the delay has been reckoned from the preliminary decree or from the final decree. Any way Ext.P2 petition for setting aside the preliminary as well as the final decree and Ext.P3 application for condoning the inordinate delay are admittedly pending before the court below. While so, the petitioner pressed for a stay of execution of the W.P.(c).No.27962 of 2008 2 decree. That was dismissed as per Ext.P8 order. Hence this writ petition. According to the petitioner, he had obtained assignment of the shares from the shareholders in the year 1987. Nothing prevented him from appearing before the court and putting forward his contentions. Now, at this distance of time, to stay the execution of the decree will be to deprive the decree holders from enjoying the fruits of the decree. This writ petition is dismissed holding that in case the petitioner is able to succeed on Ext.P2 and P3 applications and in case the ex parte decrees are set aside to his advantage, he can avail of the benefit to restitution, if the same is open to him. Dated this the 22 nd day of September, 2008. V. RAMKUMAR, JUDGE sj