IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 WP(C).No. 18878 of 2010(O) IA NO.614/2010 IN AS.44/2009 of SUB COURT, MUVATTUPUZHA OS.172/1983 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): --------------- 1. JOSE, AGED 74, S/O. AUGUSTHY, PUNCHIKUNNEL HOUSE, ENANALLORE VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 2. MATHEWS AGED 80, S/O. AUGUSTHY, PUNCHIKUNNEL HOUSE, ENANALLORE VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.K.C.ELDHO SRI.S.SREEKUMAR RESPONDENT(S): --------------- 1. ALEYKUTTY, D/O. AUGUSTHY, NARAYANPARAMBIL HOUSE, CHERTHALA VILLAGE, CHERTHALA TALUK. 2. POLACHAN, S/O. PAULOSEKUTTY, ALUNGAL HOUSE, CHENGAL KARA, VADAKKUMBHAGAM VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT. 3. VALSA DAVID, W/O. DAVID, MANAVALAN HOUSE, KUZHOOR.P.O., CHALAKKUDY. 4. SOOSAN ANDREWS, W/O. ANDREWS, ARACKAL HOUSE, NEAR ST. SEBASTIAN'S CHURCH, NORTH PARUR, ERNAKULAM DISTRICT. 5. CHRISTEENA WILSON, W/O. WILSON, MUNJELY HOUSE, EDADU, SREEMOOLANAGARAM, KALADY. 6. K.S.JOHN @ JOHNY, S/O. SEBASTIAN, KEREYENTHAN HOUSE, NARAKKAL, NOW WORKING AT NATIONAL INSURANCE CO. LTD., ERNAKULAM. WP(C) NO.18878/2010 2 7. K.S.JOY, S/O. SEBASTIAN, CHULLIKKAL HOUSE, POLLATHAI.P.O., MARARIKULAM. 8. SHEENA FRANCIS, W/O. MARTIN, QTR.NO:E-3/2, 7TH CROSS ROAD, WILLINGTON ISLAND, COCHIN-3. 9. CHINNUMARY (MINOR), REPRESENTED BY MOTHER AND GUARDIAN SHEENA FRANCIS, W/O. MARTIN, QTR.NO.E-3/2, 7TH CROSS ROAD, WILLINGTON ISLAND COCHIN-3. 10. EBIN SEBASTIAN (MINOR), REP. BY MOTHER AND GUARDIAN SHEENA FRANCIS, W/O. MARTIN, QTR.NO.E-3/2, 7TH CROSS ROAD, WILLINGTON ISLAND COCHIN-3. ADV. SRI.SIBY MATHEW FOR R1 TO R10 SRI.PHILIP J.VETTICKATTU FOR R1 TO R10 SRI.B.PREMNATH (E) FOR R1 TO R10 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.18878/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 A TRUE COPY OF MEMORANDUM OF APPEAL FILED BY THE PETITIONERS IN AS NO.44/2009 BEFORE THE SUB COURT, MUVATTUPUZHA EXT.P2 TRUE COPY OF THE FINAL JUDGMENT PASSED IN IA NO.958/2008 IN OS 172/1983 EXT.P3 TRUE CPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSION DATED 12.1.2009 EXT.P4 A TRUE COPY OF THE SALE DEED NO.3376/1969 EXT.P5 A TRUE COPY OF COMPROMISE FILED IN IA 1441/2001 EXT.P6 TRUE COPY OF ORDER IN IA NO.622/1997 IN OS 172/1983 DISMISSING THE FINAL DECREE APPLICATION EXT.P7 A TRUE COPY OF PETITION IN AS 44/2009 EXT.P8 THE CERTIFIED COPY OF ORDER IN IA 614/2010 IN AS NO.44/2009 EXT.P9 THE CERTIFIED COPY OF ORDER IN EA NO.56/2010 EXT.P10 A TRUE COPY OF THE PETITION VIDE IA NO.900/2010 FILED UNDER ORDER 41 RULE 2 OF THE CODE OF CIVIL PROCEDURE IN AS NO.44/2009 ON THE FILE OF SUB COURT, MUVATTUPUZHA EXT.P11 TRUE COPY OF PETITION VIDE IA NO.899/2010 TO CALL FOR THE RECORDS ON THE FILE OF SUB COURT, MUVATTUPUZHA EXT.P12 A TRUE COPY OF COUNTER AFFIDAVIT DATED 11.11.1998 FILED BY PETITIONERS IN THE FINAL DECREE PROCEEDINGS IA NO.622/1997 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.18878 of 2010 -------------------------------------- Dated this the 15th day of July, 2010. JUDGMENT Challenge in this Writ Petition is to Ext.P8, order dated 26.05.2010 on I.A.No.614 of 2010 in A.S.No.44 of 2009 of the court of learned Sub Judge, Muvattupuzha. That is an appeal preferred by petitioners/defendant Nos.1 and 2 in O.S.No.172 of 1983 of the court of learned Munsiff, Muvattupuzha. Grievance of petitioners is that though appeal against final decree was admitted by learned Sub Judge, request for stay of execution of final decree was disallowed as per Ext.P8, order and properties are about to be delivered to the respondents pursuant to the final decree which is under challenge in the appeal. Learned counsel for petitioners contend that petitioners have valid contentions to be raised in the appeal and that if before the appeal is disposed of final decree under challenge in that appeal is executed petitioners will be put to irreparable loss and injury. Learned counsel for respondents/defendant No.4 and legal representatives of defendant Nos.5 and 6 contend that there was no objection to the report and plan submitted by the Advocate Commissioner at the instance of petitioners before final decree was passed and hence there is no merit in the contentions urged in the appeal. It is contended that petitioners have no right over property sought to be delivered. In respect of a compromise petition which was filed in the final decree proceeding and which ended in dismissal it is WP(C) No.18878/2010 2 contended that petitioners had filed O.S.No.50 of 2008 but that suit was dismissed and hence petitioners cannot now urge dismissal of compromise petition as a ground in the pending appeal. 2. It is not disputed that after preliminary decree was passed there was a settlement between parties which resulted in a compromise petition vide I.A.No.1441 of 2001 as per which certain amounts were to be paid by petitioners/defendant Nos.1 and 2 to defendant Nos.3 to 5 within the time stipulated therein and in case of non-payment defendant Nos.3 to 5 were to realise that amount with interest at the rate of 18% per annum and charged on the property. According to the petitioners even if the amount was not paid within the time stipulated as per compromise petition, defendant Nos.3 to 5 were not entitled to get any share in the property but, their entitlement was only to realise the amount charged on property. That compromise petition was dismissed by on 28.06.2001 on the ground that one of legal representatives of deceased defendant No.5 had not joined compromise petition. Following that, final decree application was dismissed. Learned counsel states that since final decree application was dismissed, there was no occasion for petitioners to challenge dismissal of I.A.No.1441 of 2001 (compromise petition). Petitioners, filed O.S.No.50 of 2008 to enforce the compromise but that suit was dismissed as barred by limitation. Question whether notwithstanding dismissal of O.S.No.50 of 2008 for the said reason, dismissal of I.A.No.1441 of 2001 is WP(C) No.18878/2010 3 correct or not is a matter which appellate court may have to decide in view of Order 43 Rule 1A of the Code of Civil Procedure. Decision of appellate court on that question appears to be crucial in the matter. 3. Though learned counsel for respondents has referred to me entitlement of parties as to the division made I am not required to go into that question at this stage. Having heard counsel on both sides I consider it just and proper that execution of final decree is kept in abeyance till disposal of appeal pending before learned Sub Judge. At the same time, considering the nature of contentions raised by either side and taking into account the fact that suit is of the year 1983 appeal cannot be allowed to remain pending long. It is pointed out by counsel on both sides that preliminary steps in the appeal are over and that appeal is ripe for hearing. I therefore direct learned Sub Judge to dispose of the appeal as early as possible, at any rate within one month from the date of receipt of a copy of this judgment. Resultantly this Writ Petition is disposed of in the following lines: i. Learned Sub Judge, Muvattupuzha is directed to dispose of A.S.No.44 of 2009 as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. WP(C) No.18878/2010 4 ii. It is directed that until disposal of appeal as aforesaid execution of final decree in O.S.No.172 of 1983 of the court of learned Munsiff, Muvattupuzha will stand in abeyance. iii. Registry shall communicate a copy of this judgment to learned Sub Judge, Muvattupuzha also. THOMAS P.JOSEPH, Judge. cks