IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 WP(C).No. 2704 of 2010(O) ------------------------- AGAINST THE ORDER IN EA 32/2010 EP 33/06 IN OS.389/2002 of I ADDL.M.C.,NEYYATTINKARA .................... PETITIONER: --------------- NOUSHAD, S/O.NOOHU KANNU, ANCHUVARANATHERUVU, BALARAMAPURAM, VENGANOOR DESOM. BY ADV. MR. R.GOPAN RESPONDENT: --------------- SUDHA BEEVI, W/O.ABDUL SALAM, VADAKKEVILA, RUKKIYAMANZIL, THALAYAL DESOM, ATHIYANNOOR PAKUTHY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- W.P.(C). No. 2704 of 2010 ---------------------------------------------------- Dated this the 28th day of January, 2010. JUDGMENT The 2nd defendant in O.S. No. 389 of 2002 on the file of the I Additional Munsiff's Court, Neyyattinkara is the writ petitioner. The said suit is one for declaration of title and for eviction of the defendants from the plaint schedule item Nos. 1 and 2 shop rooms. The suit was resisted by the defendants contending, inter alia, that the plaintiff has no right or title over the plaint schedule properties and it was the defendants' father who had title and possession over the plaint schedule property. The suit was decreed after a protracted trial on 28.02.2005. Defendants filed an appeal before the Sub Court, Neyyattinkara as A.S. No. 114 of 2005. On 05.10.2007, the appeal was dismissed for default. The petitioner herein claims to have filed I.A. No. 2340 of 2008 under Order 9 Rule 9 r/w Section 151 C.P.C for restoration of appeal. The petitioner also filed I.A. No. 2341 W.P.(C) No. 2704/2010 : 2 : of 2008 for condoning the delay of 432 days in filing Ext.P4 application (I.A. No. 2340 of 2008). According to the petitioner, he has given sufficient grounds to explain his absence before the court on the date on which the appeal was taken up for hearing on 05.10.2007. On 21.12.2009, the petitioner claims to have filed I.A. No. 2278 of 2009 in the aforesaid appeal seeking a stay of all further proceedings in execution of decree in O.S. No. 389 of 2002. On 08.01.2010, the petitioner claims to have filed Ext.P8 application as E.A. No. 32 of 2010 in E.P. No. 33 of 2006 in O.S. No. 389 of 2002 before the Executing Court seeking a stay of all further proceedings in execution till the disposal of Ext.P4 restoration petition. On 23.01.2010, the Executing Court has passed Ext.P9 order dismissing Ext.P8 application for stay. Hence this writ petition. 2. I do not find any good ground to interfere with Ext.P9 order passed by the Executing Court which has every right to proceed with the execution in the absence of W.P.(C) No. 2704/2010 : 3 : any order of stay from a superior court. The remedy of the petitioner is to pursue Ext.P5 delay petition and in case he is able to get the delay condoned to pursue Ext.P4 application to restore the appeal which was dismissed for default. Apparently, the petitioner does not appear to have been vigilant in working out his remedies. Anyway, I do not make any observation on the merits of Exts.P4 and P5 petitions pending before the Sub Court, Neyyattinkara. The petitioner cannot invoke the extra ordinary jurisdiction of this Court for a stay of all proceedings in execution of the decree passed by a competent court. If ultimately the petitioner is able to succeed in the belated appeal filed against the decree passed by the trial court, he can possibly ask for restitution by applying re-delivery. I find no ground to interfere with the order passed by the Executing Court. This writ petition is accordingly dismissed. Dated this the 28th day of January, 2010. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 2704/2010 : 4 :