IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 WP(C).No. 28662 of 2008(K) -------------------------- AGAINST THE ORDER IN EP.66/2006 IN OS.310/1993 of MUSNIFF COURT,ADOOR .................... PETITIONER: --------------- FR.K.MATHEWS ELANJICAL, ELANJICAL VEEDU, KOTTANALLOOR MURI, ERATHU VILLAGE. BY ADV. SRI.D.KISHORE RESPONDENTS: --------------- 1. MAMMEN KOSHY, PEEDIKAYAIL THINITTIYIL, THUVAYOOR VADAKKU MURI, ERATHU VILLAGE. 2. MARIYMMA BABY, ELANJICAL SMITHI VILLA, THUVAYOOR VADAKKU MURI, ERATHU VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== W.P.(C) No. 28662 of 2008 ========================== Dated this the 29th day of September, 2008. JUDGMENT The petitioner who is not a party to the decree in O.S.No. 310 of 1993 on the file of the Munsiff's Court, Adoor claims to have filed a separate suit as O.S. No. 265 of 2006 which is pending. While so, the petitioner sought a stay of execution of the decree in O.S. No. 310 of 1993 by filing E.A. No. 77 of 2006 invoking Order 21 Rule 29 C.P.C. Even assuming that the said provision could be invoked by the petitioner, the matter is within the discretion of the court to stay the execution of the decree or not. The learned Munsiff was not inclined to stay the execution of the decree, which was obtained way back in the year 1993 and which was eventually confirmed by this Court in Second Appeal. It is true that the petitioner was not a party to the suit and technically it may not operate as resjudicata unless Explanation VI to Section 11 C.P.C applies. Even if it is accepted that the reasons stated by the court below may not be relevant to dismiss the application, since the court below has not exercised its W.P.(C) No. 28662/2008 : 2: discretion in favour of the petitioner for the reason that O.S. No. 310 of 1993 was fought up to the High Court and ended in the dismissal of S.A. No. 634 of 2006, this Court will be loath to interfere with the said order sitting under the visitorial jurisdiction of this Court under Article 227 of the Constitution of India. Hence, without making any observation on the merits of the contentions of the petitioner, this writ petition is dismissed. It is needless to observe that the suit instituted by the petitioner will have to be disposed of uninfluenced by the observations in Ext.P9 order. Dated this the 29th day of September, 2008. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 28662/2008 : 3: