IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 WP(C).No. 23814 of 2010(O) -------------------------- OS.491/2008 of PRL.M.C., KOLLAM .................... PETITIONER(S): ------------------------- MILRED JOSEPH, D/O.MARTIN JOSEPH, POCHAPPALLY, THODIYIL VEEDU, ERAVIPURAM, KOLLAM, NOW OCCUPYING ONE ROOM AT FAIR HOPE BUNGLOW, THEKKUMBHAGOM CHERRY, MUNDAKKAL VILLAGE, KOLLAM. BY ADVS. SRI.S.M.PREM, SMT.K.P.SANTHI, SRI.P.K.NIJOY. RESPONDENT(S): ----------------------------- DIANA JOSEPH, D/O.MARTIN JOSEPH, RESIDING AT JOHN MANOR, NEAR GENERAL HOSPITAL, TRIVANDRUM AND AT FIAR HOPE BUNGLOW, THEKKUMBHAGOM CHERRY, MUNDAKKAL VILLAGE, MUNDAKKAL P.O., KOLLAM-691 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- W.P (C) No.23814 of 2010 -------------------------- Dated this the 30th day of July, 2010 J U D G M E N T Petitioner filed O.S.No.491 of 2008 but suffered a decree on the counter claim raised by respondent. He has challenged the decree in A.S.No.31 of 2009 and preferred I.A.No.201 of 2010 for stay of execution of the decree on the counter claim. In the meantime respondent initiated execution proceedings and filed E.P.No.48 of 2010. While so, petitioner is said to have filed E.A.No.221 of 2010 on 18-06-2010 in the executing court seeking stay of delivery on the ground that his appeal is pending consideration. The executing court on 19-06-2010 passed the impugned order stating that “No E.A is seen filed as submitted by judgment debtor's counsel. Delivery on 21-06-2010”. That order is under challenge. Learned counsel states that E.A.No.221 of 2010 was in fact filed on 18-06-2010 but that fact was overlooked by the executing court in passing the impugned order. 2. As seen from the impugned order, it is not as if application filed by petitioner has been disallowed on merit. Executing court has only stated that no such E.A is seen filed. If as on the day impugned order was passed E.A.No.221 of 2010 : 2 : was on record, remedy of petitioner is to seek a review of the impugned order by bringing to the notice of executing court that the impugned order suffers from an apparent error on the face of the record in that, E.A.No.221 of 2010 was on record when the impugned order was passed stating that no such E.A is filed. It is also open to the petitioner to seek stay from the appellate court as he has already moved that court. I leave petitioners to seek appropriate remedies as above stated. There is no reason why this court should interfere with the impugned order, on the facts and circumstances stated above. Resultantly without prejudice to the right of petitioner to seek appropriate remedy, this writ petition is closed. THOMAS P JOSEPH JUDGE Sbna/