IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 WP(C).No. 28638 of 2008(H) --------------------------------------------- OS.390/2006 of ADDL.M.C., KOZHIKODE-I .................... PETITIONER/DEFENDANT: ABDULLA, S/O. KOLAPPALLY KOLASSERI UMMER, PERUMANNA AMSOM AND DESOM, KOZHIKODE TALUK, BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENTS/PLAINTIFFS: 1. PERADI PUDUKKUDI PADMINI AMMA W/O. ALUVANGAL MANATHANATH ACHUTHAKURUP, VELIPRAM AMSOM DESOM, KOZHIKODE TALUK. 2. PERADI PUDUKKUDI SEETHA, CHELAVOOR AMSOM DESOM, KOZHIKODE TALUK. 3. PERADI PUDUKKUDI KRISHNAN, VELLAYIKODE AMSOM DESOM, KOZHIKODE TALUK. 4. PERADI PUDUKKUDI MURALI, VELLAYIKODE AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.ANIL SIVARAMAN FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.28638 of 2008 H -------------------------- JUDGMENT Though respondents are served, there is no one to represent them. Heard counsel for the petitioner. 2. It is seen that the application for stay filed under Section 10 of Code of Civil Procedure by the petitioner was being dismissed observing that on an earlier occasion I.A.No.4625/06 for staying further proceedings was filed under Section 10 CPC and that was dismissed and that a petition of the same nature filed a second time deserves to be dismissed. 3. Counsel for the petitioner submits that it is true that earlier a petition for stay was filed as I.A.No.4625/06 and that was dismissed and against that order W.P.(C)No.27711/06 was filed before this Court and stay was granted by this Court. But, later, when the writ petition came up for hearing, the appeal suit, which was pending WPC 28638/08 2 before the first appellate court, pendency of which was the reason for moving Section 10 petition, had been dismissed and therefore, the said writ petition became infructuous and it was dismissed as infructuous, but that thereafter, against the judgment of the first appellate Court, R.S.A.No. 1061/07 was filed before this Court and consequently, the necessity of moving a petition under Section 10 CPC afresh to stay all further proceedings in O.S.No.390/06 arose and it was, therefore, that Exhibit P3 petition was filed for staying all proceedings under Section 10 CPC and that the court below has dismissed the said petition vide Exhibit P4 order without entering into the merits of the request and without considering the averments in the affidavit, accompanying Exhibit P3. 3. On going through Exhibit P4, in the circumstances submitted as above, I am of the view that Exhibit P4 deserves to be set aside and WPC 28638/08 3 Exhibit P3 application deserves to be remanded to the court below for consideration afresh as to whether O.S.No.390/06 is liable to be stayed under Section 10 CPC in view of pendency of R.S.A.No. 1061/07. This writ petition is disposed of setting aside Exhibit P4 order and remitting Exhibit P3 application (I.A.No.1156/08) for consideration afresh by the court below and for passing appropriate orders. 21st November, 2008 (K.P.Balachandran, Judge) tkv