IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 OP(C).No. 795 of 2010(O) ------------------------ IA NO.1236/2005 IN AS.86/2005 of PRINCIPAL SUB COURT,ATTINGAL OS.34/1996 of MUNSIFF COURT,VARKALA .................... PETITIONER ------------------------------ VASANTHAMANI, AGED 58 YEARS, RESIDING AT ANDITHITTA VEEDU, KADAKKAVOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT(S): --------------- 1. KOCHUVELAYUDHAN, S/O. PADMANABHAN, KUNNATHU VEEDU, KADAKKAVOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN 696304. (DEAD). 2. VALSALA, D/O. KOCHUVELAYUDHAN, VILAYIL VEEDU, KATTIMUKKU, AZHOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN 696304. 3. SUPRABHA, D/O. KOCHUVELAYUDHAN, PANAYIL LAKSHAM VEEDU, KAYIKKARA, KADAKKAVOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN 696304. 4. LEELA D/O. KOCHUVELAYUDHAN, KUNNATHU VEEDU, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN 696304. 5. AMBIKA, D/O. KOCHUVELAYUDHAN, AMBIKA BHAVAN, POZHIKKARA, DESOM, PARAVOOR VILLAGE, KOLLAM DISTRICT. 6. LEELA, D/O. KOCHUVELAYUDHAN, LEELA VILASOM, NEDUNGANDA DESOM, VAKKOM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN 696304. OP(C) NO.795/2010 2 7. SIVAPRASAD, S/O. KOCHUVELAYUDHAN, SINDHU NIVAS KALLUMALA KUNNU,VETOOR VILLAGE OF CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN 696304. 8. SULAYAKUMARI, D/O. GOVINDAN, AGED 33 YEARS, THATTARATHUY VEEDU, KAIKKARA DESOM, KADAKKAVOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN 696304. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.795 of 2010 -------------------------------------- Dated this the 22nd day of November, 2010. JUDGMENT Appellant No.3 in A.S.No.86 of 2005 of the court of learned Sub Judge, Attingal is the petitioner before me. A final decree for partition is under challenge in that appeal. Petitioner and others filed I.A.No.1236 of 2005 for stay of execution of the final decree and an interim order was passed on that application. Respondent No.1 filed W.P.(C) No.24945 of 2006 for early disposal of the appeal. This Court disposed of that petition vide Ext.P1, judgment dated September 22, 2006 observing that there may be older appeals pending before the court below involving senior citizens and there is no reason why A.S.No.86 of 2005 should be taken out of turn and disposed of unless there are other compelling reasons for that. But learned Sub Judge was directed to make an earnest endeavour to see that the appeal is disposed of expeditiously. This Court disposed of the Writ Petition on September 22, 2006. On 13.06.2007 I.A.No.1236 of 2005 (for stay of execution of the final decree) was dismissed, according to the petitioner without notice to the petitioner and other appellants. Learned counsel points out that pursuant to Ext.P1, judgment of this Court respondent No.1 filed application to advance hearing of the appeal from 13.12.2006. But that request was not allowed and on 13.12.2006 appeal was not taken up. Later on 03.01.2007 the appeal was posted on 25.01.2007 and then on 14.02.2007 and 03.10.2007. On 28.03.2007 there was I.A.No.1647 of OP(C) No.795/2010 2 2007 to advance hearing of the appeal. That application was allowed and on 13.06.2007, I.A.No.1236 of 2005 was dismissed according to the petitioner, without hearing petitioner and others. Learned counsel submits that the order dismissing I.A.No.1236 of 2005 (Ext.P2) is bad in that it was passed without hearing petitioner and others. It is also submitted that respondent No.1 is executing the final decree and if before the appeal is disposed of the decree is executed, petitioner and other appellants will be put to irreparable loss and injury. 2. In the impugned order in paragraph No.5 learned Sub Judge states that petitioner/appellant No.3 and counsel absented from appearing and did not argue I.A.No.1236 of 2005 inspite of sufficient opportunity given for the purpose and hence petitioner/appellant No.3 was taken as heard. At any rate, that order was passed on 13.06.2007 and this petition challenging that order is presented on 11.11.2010. I do not find it necessary or appropriate to entertain this petition at this stage. 3. But the appeal requires to be disposed of without further delay. This Court refused to direct an early disposal of appeal by Ext.P1, judgment since then the appeal was of the year 2005 and Writ Petition seeking early disposal of the appeal was filed in 2006. Now we are towards the close of 2010 and five years have elapsed. Therefore, there is no reason to keep the appeal on file any further. Learned Sub Judge has already dismissed OP(C) No.795/2010 3 I.A.No.1236 of 2005 for stay of execution of final decree. Now there is no stay in the matter of execution of final decree. In such a circumstance an early disposal of the appeal is warranted. Hence I direct learned Sub Judge to dispose of A.S.No.86 of 2005 within one month from the date of receipt of a copy of this judgment. Original Petition is disposed of. THOMAS P.JOSEPH, Judge. cks