IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 WP(C).No. 17350 of 2010(O) -------------------------- EP NO.250/2009 IN OS.290/1998 of ADDL.MUNSIFF COURT, KOLLAM .................... PETITIONER(S): --------------- ANTONY PAUL F., S/O.SALIMA, AGED 30 YEARS, RESIDING AT PALLIPOIKA THATTU PURAYIDOM, KANJIRACODE, KUNDARA, KOLLAM. BY ADV. SRI.R.SURAJ KUMAR SRI.N.AJITH RESPONDENT(S): --------------- 1. LISSY FRANCIS, AGED 48, D/O.FRACIS, RESIDING AT PALLIPOIKA VEEDU, KANJIRACODE, KUNDARA, KOLLAM. 2. SALOMA FRANCIS, PALLIPOIKA THATTU PURAYIDOM, KANJIRACODE, KUNDARA, KOLLAM. 3. F.ASUNTHA MARY, AGED 41 YEARS, NEHA-NIDHI, ANCHUMUKKU, PERUMPUZHA P.O., KERALAPURAM, KOLLAM, FROM PALLIPOIKA THATTU PURAYIDOM, KANJIRACODE, KUNDARA, KOLLAM. 4. F.ROSE MAY, PALLIPOIKA THATTU PURAYIDOM, KANJIRACODE, KUNDARA, KOLLAM. 5. F.TREASA MARY, PALLIPOIKA THATTU PURAYIDOM, KANJIRACODE, KUNDARA, KOLLAM. 6. F.SOFIA MARY, PALLIPOIKA THATTU PURAYIDOM, KANJIRACODE, KUNDARA, KOLLAM. 7. F.JOHNSON, PALLIPOIKA THATTU PURAYIDOM, KANJIRACODE, KUNDARA, KOLLAM. 8. F.NIRMALA MARY, USMANO BHAVAN, PYNAPPIL JUNCTION, PUNALUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/06/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.17350 of 2010 -------------------------------------- Dated this the 3rd day of June, 2010. JUDGMENT Petitioner is the judgment debtor in E.P.No.250 of 2009 in O.S.No.290 of 1998 of the court of learned Additional Munsiff, Kollam. That is a suit for partition where preliminary and final decrees have been passed. Final decree is being put to execution. In the meantime petitioner has preferred A.S.No.379 of 2009 with an application to condone the delay in filing that appeal in the court of learned District Judge, Kollam challenging final decree. It is stated by learned counsel that notice on the application to condone delay has been served on respondents in the appeal but, that application is pending consideration of learned District Judge. It is in the meantime that the final decree is being executed. Thereon, petitioner has filed application under Order 21 Rule 26 of the Code of Civil Procedure in the executing court seeking stay of execution of the decree stating about pendency of appeal and application to condone the delay. Grievance of petitioner is that the said application (Ext.P11 in this proceeding) has not so far been disposed of by the executing court but, that court ordered delivery of property and posted the case on 04.06.2010 for delivery. If delivery is effected before disposing of Ext.P11, application petitioner will be put to irreparable loss and injury. Learned counsel has placed reliance on the decisions in Allahabad Bank v. Kumara Swamy (1999 (3) KLT WP(C) No.17350/2010 2 539) and Ram Kumar Agarwal and another v. Thawar Das (dead) through Lrs. ((1999) 7 SCC 303) to support his contention that the application under Order 21 Rule 26 of the Code is maintainable. 2. If Ext.P11, application for stay preferred by petitioner has not been disposed of by the executing court, it is not proper to have ordered delivery before that application is disposed of. Hence I direct the executing court to dispose of Ext.P11, application before delivery is effected (in case that application has not so far been disposed of). Learned District Judge shall also expedite disposal of the applications for condonation of delay and stay of execution preferred in the appeal pending before him. Resultantly this Writ Petition is disposed of directing the executing court to dispose of Ext.P11, application dated 15.12.2009 (under Order 21 Rule 26 of the Code) preferred by the petitioner before property is delivered over, in case that application has not so far been disposed of. Learned District Judge is also directed to expedite disposal of the applications to condone delay and for stay of execution of decree preferred in A.S.No.379 of 2009 pending in the District Court, Kollam. THOMAS P.JOSEPH, Judge. cks WP(C) No.17350/2010 3 The citation “Allahabad Bank Vs. Kumara Swamy (1999(3) KLT 539” occurring in the last line of page 1 and in the 1st line of page 2 of the judgment dated 3.6.2010 in WPC.17350/2010 is deleted and substituted as “Mathew Titus Vs. Thankamma Titus [1999(3) KLT 538] as per order dated 29.6.2010 in I.A.8663/2010 in W.P(c). Sd/- Registrar (Judicial)