IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 WP(C).No. 26531 of 2008(H) --------------------------------------- EA. NO.189/08 IN EP. 64/08 IN OS.279/1993 of MUNSIFF COURT, ALATHUR .................... PETITIONER: ------------------- SANKARANKUTTY ALIAS RAMAN, CHEMBILIYAMKUNNU, VADAKKENCHERRY AMSOM, DESOM, ALATHUR TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.M.GEORGE THOMAS RESPONDENT: ----------------------- PATHUMUTHUMMA, W/O. IBRAHIM, CHEMBILIYAMKUNNIL, VADAKKANCHERRY AMSOM, DESOM, ALATHUR TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P. (C) No.26531 of 2008 ------------------------------- Dated this the 2nd September, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India to quash Ext.P2 order passed by Munsiff, Alathur, in E.A.No.189 of 2008 in E.P.No.64 of 2008 in O.S.No.279 of 1993, to stay the execution proceedings. A final decree was passed in O.S.No.279 of 1993. E.P.No.64 of 2008 was filed to take delivery of the property alloted thereunder. The case of the petitioner is that challenging the preliminary decree, petitioner filed first appeal which was dismissed and RSA. No.1039 of 2006 was filed before this Court, but no order of stay could be obtained, as there was delay, and in such circumstances, executing court should have granted stay of execution of the decree as sought for, and as the petition for stay was dismissed under Ext.P2, it is to be quashed. 2. Learned counsel appearing for the petitioner submitted that if ultimately Second Appeal is to be allowed and W.P.(C) No.26531 of 2008 2 preliminary decree is to be set aside, and meanwhile, delivery is given pursuant to the final decree in E.P.No.64 of 2008, it would cause much hardship and difficulty to the petitioner who is residing in the property. Learned counsel also argued that this Court had earlier in similar situation held that an order of stay could be passed. 3. On hearing the learned counsel, I do not find any reason to interfere with Ext.P2 order. Rule 26 of Order XXI enables the judgment debtor to apply for stay of the execution proceedings for a reasonable time, to enable the judgment debtor to apply the Court by which the decree was passed or any Court having Appellate jurisdiction in respect of the decree, for an order of stay of execution. It has no application to a case of this nature when the decree was not transferred at all, as canvassed by the learned counsel, though a learned Single Judge held otherwise in another case, in the peculiar circumstances of that case. The grievance of the petitioner could have been appreciated, if at least the final decree was challenged in an appeal. An order of W.P.(C) No.26531 of 2008 3 stay could have been obtained by filing an appeal against the final decree. Second appeal though filed is yet to be considered, as it was filed after much delay. Even if the delay is condoned, Second appeal is again to be considered at admission stage and only if there is a substantial question of law involved it could be admitted and an order of stay could be passed in the second appeal. In such circumstances, it is not possible for this Court to grant an order of stay in this writ petition. Writ petition is dismissed. Dismissal of the writ petition will not prevent petitioner from challenging the final decree in an appeal. M.SASIDHARAN NAMBIAR, JUDGE nj.