IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 15578 of 2009(O) -------------------------- CMA.5/2009 of DISTRICT COURT, KASARAGOD E.P.NO.54/97 IN O.S.NO.67/96 of MUNSIFF COURT, HOSDURG. .................... PETITIONER(S): ------------------------- GEORGEKUTTY P JOHN, AGED 44 YEARS, S/O. LATE P.J. JOHN, CHRISTIAN, RESIDING AT ELLUMPURAM, MUTTOM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, P.O. ELLUMPURAM. BY ADVS. MR.VIVEK VARGHESE P.J. MR.P.J.VINOD JOSEPH. RESPONDENT(S): --------------------------- 1. MARYKUTTY T.V, AGED 62 YEARS, W/O. LATE P.J. JOHN, RESIDING AT PEROLE ,PEROLE VILAGE, HOSDURG TALUK, P.O. NILESHWAR. 2. ANNAMMA JOHN, AGED 46 YEARS, D/O. MARYKUTTY T.V., RESIDING AT KODANAD, KOOVAPADY GRAMA PANCHAYATH, KUNANTHUNADU TALUK, ERNAKULAM DISTRICT. 3. PUTHIYAPARAMBAN RAMACHANDRAN, AGED 47 YEARS, S/O. SOUDAMINI AMMA, HINDU, AGRICULTURIST, RESIDING AT KARALAM, KINANNOOR VILLAGE, HOSDURG TALUK, P.O. KATTIPOYIL, KASARGOD DIST. 4. THEKKUMBADAM LEXMI, AGED 77 YEARS, W/O. LATE KUNHANGADAN CHATHU, R/AT PEROLE VILLAGE, P.O. NILESHWAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON 12/06/2009 DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 15578 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 12th June, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. To issue an order or direction setting aside Exts. P2 and P3. 2. To issue an order or direction staying all further proceedings in E.P.No.54/97 in O.S.No.67/96 before the Munsiff Court, Hosdurg. 3. Cost of this proceedings. 2. Petitioner is the plaintiff in O.S.No.107/08 on the file of the Sub Court, Hosdurg. In the suit, it is stated, a decree of partition of the plaint schedule property declaring that two sale deeds executed in favour of third and fourth respondents respectively are null and void and of setting aside a decree and judgment obtained by the third defendant in O.S.No.67/96 of the Munsiff Court, Hosdurg against the first respondent and her late husband was sought for. First respondent is the mother of the plaintiff. In the suit, the plaintiff moved an application under Order 37 Rule 4 and Section 151 of the C.P.C. for staying the execution proceedings in E.P.No.54/97 in O.S.No.67/96 on the file of the Munsiff Court, Hosdurg till the disposal of the suit. The third defendant resisted the application filing W.P.C.No.15578/09 - 2 - a counter. After considering the merit of the application moved by the petitioner, the learned Munsiff dismissed it under Ext.P2 order. Correctness of that order is impeached in this Writ Petition. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and the facts and circumstances presented, I find, no impropriety, illegality or irregularity in the order passed by the learned Sub Judge declining the request of the petitioner to stay execution proceedings over a validly obtained decree by the third and fourth defendants in their suit. Petitioner has claimed right over the suit property under his father (deceased), as against whom the above defendants had obtained the decree. Whatever contentions mooted by the petitioner built upon a purchase certificate had been raised by his father in the previous suit to resist the claim of the plaintiff therein, but, they were found against and a decree was passed. Challenge against that decree raised by his father in two forums were unsuccessful. Petitioner has styled the present petition under Order 37 Rule 4 C.P.C. which is applicable only in the case of summary proceedings, but not to a suit of the nature filed by him, is also another circumstance indicating that he was perfectly aware of the W.P.C.No.15578/09 - 3 - futility of the exercise proceeded with. The Writ Petition is devoid of any merit and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE