IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WP(C).No. 35918 of 2008(A) -------------------------- OS.691/2007 of PRL.M.C., KOLLAM .................... PETITIONER(S): ------------------------- ANNAMMA VARGHESE, SHAINE VEEDU, VADAKKEVILA VILLAGE, KOLLAM. FROM VILAYIL BUNGLOW, VADAKKEVILA VILLAGE, KOLLAM. BY ADVS. MR.MATHEW JOHN (K), MR.AJEESH K.SASI RESPONDENT(S): ---------------------------- MARY ABRAHAM, ULLAS DALE, KALLERI, POST KONNI, PATHANAMTHITTA. BY ADVS. MR.V.V.RAJA, MR.M.T.SURESHKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.35918/2008 A APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPLICATION FILED BY THE PETITIONER DTD.27/10/2006. P2: COPY OF THE OBJECTION FILED BY THE RESPONDENT DTD.13/12/2006. P3: COPY OF THE PLAINT FILED BY THE RESPONDENT. P4: COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER DTD. 23/11/2007. P5: COPY OF THE OBJECTION FILED BY THE RESPONDENT DTD.8/2/2008. P6: COPY OF THE ORDER DTD. 14/07/2008 IN I.A.NO.5401 OF 2007 IN O.S.NO.691 OF 2007 MUNSIFF'S COURT, KOLLAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 35918 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 19th August, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records leading upto Ext.P6 and set aside the same. 2. To issue such other directions or orders as are just and necessary in the facts and circumstances of the case. 2. Petitioner is the defendant in O.S.No.691 of 2007 on the file of the Munsiff Court, Kollam. Suit is for recovery of possession and the respondent is the plaintiff. Previously, the respondent as plaintiff had filed a suit as O.S.No.1355 of 1988 before the Munsiff Court, Kollam against two persons, one Sundaran Pillai and Njana Moni and it was decreed. The decree directed the second defendant, Njana Moni by a mandatory injunction to remove the construction purported to have been made in one of the items scheduled in that suit. Since there was noncompliance of that decree, the respondent/decree holder in that suit filed an execution petition as E.P.No.103 of 2005 before the Munsiff Court. Meanwhile, under a registered deed of conveyance, the petitioner herein obtained an item of property from the above said Njana Moni, the 2nd defendant in the above suit. In execution of the decree a portion of a structure was W.P.C.No.35918/08 - 2 - demolished and thereupon petitioner filed an application under Order 21 Rule 99 of the C.P.C. as E.A.No.437 of 2006 alleging dispossession from a portion of her property which, according to her, was not covered by the decree passed in favour of the respondent. The application filed by the petitioner, after enquiry, was dismissed against which an appeal was preferred as A.S.No.161 of 2007 before the District Court and the same is pending. Meanwhile, alleging that subsequent to the execution of the decree as aforesaid, the petitioner had trespassed into the property and constructed a wall the respondent instituted a suit as O.S.No.691 of 2007 for recovery of possession. Stay of the proceedings in that suit was sought for by the petitioner under Section 10 of the C.P.C. till the disposal of her appeal A.S.No.161 of 2007 pending on the file of the District Court, Kollam contending that identical issues arise in both proceedings and so much so, the trial of the suit has to await decision in the appeal. The application was objected to by the respondent/plaintiff in the suit. The learned Munsiff, after hearing both sides and perusing the materials produced, dismissed the application vide P6 order. Propriety and correctness of P6 order is challenged in the Writ Petition invoking the supervisory jurisdiction vested with this court under Article 227 of the W.P.C.No.35918/08 - 3 - Constitution of India. 3. I heard the counsel on both sides. Learned counsel for the petitioner realising the futility in pressing for invoking Section 10 of the C.P.C. for staying the proceedings of a suit in relation to an appeal preferred against the decision in an application moved against an order in an execution proceeding canvassed for grant of stay under Section 151 of the C.P.C. submitting the facts involved in the case warrant stay of the proceedings in O.S.No.691 of 2007 filed by the respondent till her appeal, A.S.No.161 of 2007, is disposed on merits. The question arising for adjudication in the suit is squarely covered in the appeal preferred by her against the application moved under Order 21 Rule 99 of the C.P.C. before the execution court is the submission of the learned counsel. I do not want to express any opinion on the merit of the application made by the petitioner to resist the execution of a decree obtained by the respondent in O.S.No.1355 of 1988 against her transferee who was the second defendant in that suit. Her claim over the property covered by her application is admittedly under a judgment debtor proceeded in execution of the decree and unless it is shown the property conveyed to her is different from the property covered by the decree, her W.P.C.No.35918/08 - 4 - application cannot be entertained. The case of the respondent, it appears, is that the property covered in her suit, O.S.No.691 of 2007 is the property involved under the decree in O.S.No.1355 of 1988 in which a decree had been passed in her favour against the transferee of the petitioner and another. When that be so, there cannot be any identity of the subject matter in A.S.No.161 of 2007 filed by the petitioner and the suit instituted by the respondent against the petitioner pending for adjudication before the Munsiff Court. Further more, inherent power under Section 151 of the C.P.C. can be invoked only where it is found necessary to safeguard the interest of justice and further, no other provision in the Code is available for grant of the reliefs sought for. After hearing the counsel on both sides at length and in the given facts of the case, I find that this is not a fit case where the petitioner is entitled to a relief invoking the inherent power of the court under Section 151 C.P.C. Petition lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE