IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 WP(C).No. 3159 of 2010(O) ------------------------- AS.12/2009 of SUB COURT,ATTINGAL EP.6/2009 IN OS.135/2006 of MUNSIFF COURT,VARKALA .................... PETITIONER: --------------- RAVIDAS, S/O.NARAYANAN, AGED 40 YEARS, CHARUVILA VEEDU, PUTHENCHANTHA, VETTOR DESOM, VARKALA, THIRUVANANTHAPURAM. SHOP ADDRESS: RAVIDAS, R.V.STORES, S.N.SHOPPING COMPLEX, PUTHENCHANTHA, VARKALA, THIRUVANANTHAPURAM. BY ADV. MR. R.ANILKUMAR RESPONDENT: --------------- SUDHA, D/O.NANU, AGED 51 YEARS, FLAT NO.424, 3RD FLOOR, BLOCK-7, E.M.S.NAGAR, PATTOOR, THIRUVANANTHAPURAM, FROM, S.NIVAS, PUTHENCHANTHA, VETTOR DESOM, VARKALA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- W.P.(C). No.3159 of 2010 ------------------------------------------------------------ Dated this the 1st day of February, 2010. JUDGMENT The writ petitioner is the defendant in O.S. No. 135 of 2006 on the file of the Munsiff's Court, Varkala. The said suit was one for eviction with arrears of rent from a shop room of which the defendant/writ petitioner is the tenant. The petitioner resisted the suit on various grounds. As per Ext.P1 judgment dated 31.10.2008, the learned Munsiff decreed the suit. Aggrieved by the judgment and decree passed by the Munsiff's Court, the petitioner claims to have filed an appeal before the Sub Court, Attingal as A.S. No. 12 of 2009 (Ext.P2) with an application for stay filed as I.A. No. 202 of 2009 (Ext.P3). His grievance is that neither the stay petition nor the delay petition is being taken up and in the meanwhile, the respondent/plaintiff has levied execution and the matter stands posted before the Executing Court tomorrow. He, therefore, prays for a direction to dispose of W.P.(C) No. 3159/2010 : 2 : Ext.P2 appeal or at least Ext.P3 stay petition. 2. If Ext.P2 appeal has been filed within time, in the normal course, it should have been taken up for hearing under Order 41 Rule 11 C.P.C. It is submitted that the respondent/plaintiff has lodged a caveat before the lower appellate court. It is not clear whether the appeal has been admitted under Order 41 Rule 11 C.P.C. A hearing of the appeal under Order 41 Rule 11 C.P.C and disposal of I.A. No. 202 of 2009 seeking stay of execution, ought to have been made by now. Keeping the First Appeal pending, if the proceedings in execution are allowed to be continued, that will render the appeal itself infructuous. Accordingly, this writ petition is disposed of without notice to the respondent/plaintiff by directing the Sub Court Attingal to take up A.S. No. 12 of 2009 or at least I.A. No. 202 of 2009 and pass appropriate orders thereon. Being a First Appeal, if the appeal has been admitted, it can be disposed of only on the merits after giving both sides an opportunity of being W.P.(C) No. 3159/2010 : 3 : heard and if that process involves delay, the lower appellate court should not allow the proceedings in execution to reach a culmination rendering the appeal itself infructuous. The Sub Court Attingal shall, therefore, pass final orders on I.A. No. 202 of 2009 within one month of receipt of a copy of this judgment. All further proceedings in E.P. No. 6 of 2009 in O.S. No. 135 of 2009 on the file of the Munsiff's Court, Varkala shall be kept in abeyance for the said period of one month. In case this direction is incapable of being worked out due to any circumstance beyond the control of the lower court, it is open to the learned Sub Judge to send a report to the Registrar of this Court through proper channel. Dated this the 1st day of February, 2010. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 3159/2010 : 4 :