IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 WP(C).No. 31120 of 2009(O) ------------------------------------ AGAINST THE ORDER DATED 30/09/2009 IN IA 197/2008 IN OS.153/2005 of MUNSIFF COURT,PARAPPANANGADI .................... PETITIONER(S): ------------------------ THANDALAN AHAMMADKUTTY, S/O.UNNEEN, AGED 65 YEARS, A.R.NAGAR AMSOM DESOM, TIRURANGADI, MALAPPURAM DISTRICT. BY ADV MR.K.P.SUDHEER RESPONDENT(S): ------------------------- 1. THANDALAN PATHUMMU, D/O.UNNEEN, AGED 59 YEARS, A.R.NAGAR POST, KUTTOOR NORTH, MALAPPURAM DISTRICT. 2. AREEKADAN ABDURAHIMAN, S/O.MOHAMMED, A.R.NAGAR, KUTTOOR NORTH POST, TIRURANGADI, MALAPPURAM DISTRICT. 3. AREEKADAN MOHAMMADALI, S/O.ALAVI, DO. DO. 4. AREEKADAN SHAREEFA, D/O.ALAVI, DO. DO. 5. AREEKADAN RASHEED, S/O.ALAVI, DO. DO. 6. AREEKADAN AMINA, W/O.ALAVI, DO. DO. 7. THANDALAN ALAVI, S/O.UNNEEN, A.R.NAGAR, KUTTOOR NORTH, TIRURANGADI, MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.31120 OF 2009 -------------------------- Dated this the 3rd day of November 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records relating to I.A No.197/2008 in O.S No.153/2005 on the file of the Munsiff Court, Parappanangadi and quash Ext.P6 order dated 30/09/2009 (docket order) by issuing a writ of certiorari or other appropriate writ, order or direction. ii) Issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. Petitioner is the second defendant in O.S No.153 of 2005 on the file of the Munsiff Court, Parappanangadi. Suit is one for partition. W.P.(C).No.31120 OF 2009 Page numbers Previously the trial of the suit had been stayed under Section 10 of the Code of Civil Procedure in view of the pendency of an appeal before the Appellate Authority filed by the petitioner/first defendant challenging the issue of a purchase certificate in favour of additional defendants 7 to 11 in the suit. Now that stay has been vacated by the learned Munsiff by order dated 30/09/2009 holding that in the given facts of the case Section 10 of the Code of Civil Procedure has no applicability. Propriety and correctness of that order passed by the learned Munsiff vacating the order of stay of the trial of the suit which continued in force is challenged in the writ petition invoking the visitorial jurisdiction vested with this court. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is W.P.(C).No.31120 OF 2009 Page numbers necessary and hence it is dispensed with. Question posed for consideration is whether pendency of an appeal before the Appellate Authority in relation to challenges raised against the issue of a purchase certificate in favour of one or other of the parties in the suit is a sufficient ground for stay of the trial of a suit under Section 10 of the Code of Civil Procedure. Needless to point out that such a matter cannot be considered as directly and substantially in issue as contemplated by Section 10 of the Code of Civil Procedure which mandate that the issue must be one in a previous suit instituted between the parties. Even if there is some connection as between the disputes pending before different forums it cannot be considered as directly and substantially in issue in a previous suit An Appellate Authority cannot be considered as a court in which a previous suit had been issued between the parties. I do not find any impropriety or illegality in the order passed by the learned Munsiff vacating the order passed earlier under W.P.(C).No.31120 OF 2009 Page numbers Section 10 of the Code of Civil Procedure interdicting the trial of the present suit. Writ petition lacks merit, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv