IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 OP(C).No. 1236 of 2011(O) ------------------------------------- E.A. NO.16/11 IN IN EP 87/2009 IN OS.350/2006 of MUNSIFF COURT,CHENGANNUR .................... PETITIONER (S): JUDGMENT DEBTOR ------------------------------------------------------- PANCHAMI, AGED 63 YEARS, W/O. KANDANKALI GOPALAN, KUZHIKKALAGAM, THURUTHIMEL, CHERIGANADU VILLAGE. BY ADV. SRI.P.HARIDAS SMT.S.SIKKY RESPONDENT(S): / DECREE HOLDER -------------------------------------------------------- 1. SREENARAYANA TRUST, KOLLAM, REGISTRATION NO. 4232/52, REPRESENTED BY ITS SECRETARY, KOLLAM-1. 2. SRI.VELLAPPALLY NATESAN, VELLAPPALLY HOUSE, KANICHUKULANGARA, CHERTHALA. 686 544. 3. MOHANAN, AGED 28 YEARS, S/O. KANDANKALI GOPALAN, KUZHIKKALAGAM, THURUTHIMEL, CHERIGANADU VILLAGE.689121. 4. USHA, AGED 38 YEARS, D/O. KANDANKALI GOPALAN, KUZHIKKALAGAM, THURUTHIMEL, CHERIGANADU VILLAGE.6890 121. R1 & R2 BY ADVS. SRI.A.N.RAJAN BABU, SRI.P.GOPALAKRISHNAN (MVA). THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1236 of 2011 --------------------------------------- Dated this 25th day of July, 2011 JUDGMENT Petitioner and respondents 3 and 4 are defendants in O.S.No.350 of 2006 of the Court of learned Munsiff, Chengannur. That is a suit filed by respondents 1 and 2 for eviction of petitioner and respondents 3 and 4 on the strength of a sale deed in their favour, executed by husband of petitioner. According to the petitioner, the sale deed was executed in the name of respondents 1 and 2 subject to conditions which respondents 1 and 2 did not fulfill and thereon petitioner and others resumed possession of the property and continued to be in possession thereof. Contending so, petitioner and others filed written statement and made a counter claim claiming title by adverse possession. Learned Munsiff, Chengannur decreed the suit and dismissed the counter claim. That judgment and decree were challenged in the Sub Court, Chengannur. By that time, learned Munsiff who passed the decree was promoted and posted as Sub Judge at Chengannur. Thereon, the appeal was transferred to the Sub Court, Mavelikkara and renumbered as A.S.No.2 of 2010. That appeal happened to be dismissed for default. According to O.P(C).No.1236 of 2011 -: 2 :- the petitioner, herself and respondents 3 and 4 did not get notice of transfer of the case to the Sub Court, Mavelikkara. Petitioner and others filed application to readmit the appeal along with an application to condone the delay of 41 days in filing the said application. Those applications are pending consideration in A.S.No.2 of 2010. In the meantime respondents 1 and 2 filed E.P.No.87 of 2009 before the learned Munsiff, Chengannur in O.S.No.350 of 2006 to execute the decree. Thereon, petitioner filed application under Rule 26 of Order XXI of the Code of Civil Procedure to stay further proceeding in the executing court until disposal of the applications pending in A.S.No.2 of 2010. That application was dismissed. Petitioner has filed this original petition for a direction for issue of a copy of the said order, and on getting a copy of the said order, has sought amendment of the original petition challenging the order itself. Learned counsel submitted that before learned Sub Judge, Mavelikkara considered the applications for re-admission of the appeal and to condone the delay, if petitioner and respondents 3 and 4 are evicted from the suit property it will cause irreparable loss and injury to them Learned counsel for respondents 1 and 2 while resisting the contention submitted that respondents 1 ands 2 got title and possession of the property as per the sale deed executed by the husband of petitioner and that there is no merit or substance in O.P(C).No.1236 of 2011 -: 3 :- the counter claim raised by petitioner and others. 2. At this stage, I am not required to go into the merit of the contentions raised by either parties. That is a matter which learned Sub Judge, Mavelikkara has to decide in the appeal if it is readmitted. Now, it is not disputed that application for readmission of the appeal with an application to condone the delay is pending consideration before learned Sub Judge, Mavelikkara. In the circumstance, it is only appropriate that execution proceedings are kept in abeyance for some time so that in the meantime petitioner can pursue the remedy for re- admission of the appeal. Resultantly this original petition is disposed of in the following lines: It is directed that delivery proceeding in E.P.No.87 of 2009 in O.S.No.350 of 2006 of the Court of learned Munsiff, Chengannur will stand in abeyance for a period of two months from this day or till learned Sub Judge, Mavelikkara passes order on the applications for readmission of appeal, condonation of delay and the application for stay in A.S.No.2 of 2010, whichever is earlier. It is open to the parties to request learned Sub Judge to dispose of the said applications as expeditiously as possible at any rate, within the aforesaid period of two months. (THOMAS P JOSEPH, JUDGE) Sbna/-