IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WP(C).No. 23034 of 2010(O) -------------------------- AS.31/2009 of SUB COURT, CHENGANNUR OS.231/1995 of MUNSIFF COURT,CHENGANNUR .................... PETITIONER: --------------- UNNIKRISHNAN, S/O. VELAYUDHA PANICKER, AGED 43 YEARS, CHIRAMEL VEETTIL, KODUKULANJI MURI, ALA VILLAGE, CHENGANNOOR TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT: --------------- C.V.GOPI, AGED 63 YEARS, RESIDING AT HOUSE NO.34/313 PADIVATTOM, EDAPPALLY, COCHIN-24. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.23034 of 2010 --------------------------------------- Dated this 23rd day of July, 2010 JUDGMENT This writ petition is against Ext.P1, order on I.A.No.1182 of 2009 in O.S.No.231 of 1995 of the court of learned Munsiff, Chengannur. That is a suit for partition in which Ext.P2, preliminary judgment and decree were passed. Respondent filed Ext.P5, application for passing a final decree. Some of the defendants remained ex parte on that application. They sought to set aside the ex parte order against them but that ended in dismissal. They preferred C.M.A.No.13 of 2005 which was allowed on cost but, since cost was not paid that appeal was dismissed. Against the preliminary decree, petitioner has preferred A.S.No.31 of 2009 in the court of learned Sub Judge, Chengannur with Ext.P4, application to condone the delay of 710 days. In view of pendancy of the appeal and application to condone the delay petitioner filed I.A.No.1182 of 2009 in I.A.No.950 of 2008 in O.S.No.231 of 1995 to stay proceedings until the appeal is disposed of. That application was dismissed by the learned Munsiff by Ext.P1, order which is under challenge. Learned counsel submits that there is every possibility of the W.P.C.No.23034 of 2010 : 2 : appeal against preliminary judgment and decree being allowed and if in the meantime final decree proceeding continued and resulted in a final decree, petitioner will be put to irreparable loss and injury. There is also a request to the learned Sub Judge to expedite disposal of Ext.P4, application and A.S.No.31 of 2009. 2. Now there is a challenge to the preliminary judgment and decree though the appeal is accompanied by an application to condone the delay and that application is yet to be disposed of. As contended by learned counsel for petitioner challenge to the preliminary judgment and decree succeeds and the same are set aside then the final decree that may be passed in I.A.No.950 of 2008 can have no legs to stand. Hence, no prejudice will be caused if final decree proceeding on I.A.No.950 of 2008 continued notwithstanding pendancy of the appeal from preliminary judgment and decree. As such, I do not find reason to interfere with Ext.P1, order refusing to grant stay but the appeal from the preliminary decree has to be disposed of at the earliest. In the circumstances, learned Sub Judge, Chengannur is directed to dispose of A.S.No.31 of 2009 and Ext.P4, application to condone the delay at the earliest. Writ petition is disposed of with the above direction. (THOMAS P JOSEPH, JUDGE) Sbna/-