IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 OP(C).No. 90 of 2011(O) ----------------------- AGAINST THE ORDER IN EP 164/2010 IN OS.101/1989 OF MUNSIFF COURT, VAIKOM .................... PETITIONER : ------------------ LAILA BEEVI, DAUGHTER AND GUARDIAN OF NABEESA BEEVI,THOTTINOZHATHU VEETTIL, THALAYOLAPARAMBU, VADAYAR VILLAGE,VAIKOM TALUK. BY ADV. SRI.N.NAGARESH SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU RESPONDENT(S): ------------------------- 1. SULAIMAN,S/O.NAVARKANI RAWTHER, AGED 49 YEARS,RESIDING AT MAHI MANZIL, KOTTIPPILLIPARAMBIL,VELOORKARA, KOTTAYAM VILLAGE, KOTTAYAM TALUK-686501. 2. P.S.HAMSA,AGED 55 YEARS, S/O.SAIDUMOHAMMED,MOOSAMBI,PALAPARAMBIL HOUSE, VELOORKARA,VELOORKARA VILLAGE,KOTTAYAM TALUK, PIN-686501. 3. ABDUL RAHIM, AGED 46 YEARS, S/O.PAREETH, MANIPARAMBIL HOUSE,VELOORKARA,VELOORKARA VILLAGE, KOTTAYAM TALUK-686501. ADV. SRI.J.JULIAN XAVIER FOR R1-3 SRI.FIROZ K.ROBIN FOR R1-3 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------- O.P.(Civil) No.90 of 2011 O -------------------------------------- Dated this the 24th day of January, 2011 J U D G M E N T This Original Petition is filed by “Laila Beevi, daughter and guardian of Nabeesa Beevi”, for the following reliefs : “(i) direct the Munsiff Court, Vaikom, not to proceed with E.P.No.164 of 2010 in O.S.No.101 of 1989, till the final disposal of O.S.Nos.17 of 1989 and 312 of 2010 ; (ii) direct the Munsiff Court, Vaikom, to consider Exhibit P12 E.A.No.423 of 2010 and pass appropriate orders thereon forthwith ; and (iii) issue such other writ, direction or order this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case.” 2. O.S.No.101 of 1989 on the file of the court of the Munsiff, Vaikom, was filed by the first respondent (Sulaiman) O.P.(Civil) No.90 of 2011 2 in which respondents 2 and 3, Hamsa and Abdul Rahim, were impleaded as additional plaintiffs 2 and 3. The additional plaintiffs were impleaded as subsequent assignees. Nabeesa Beevi was the third defendant in O.S.No.101 of 1989. There was another suit as O.S.No.17 of 1989 before the same court, in which also Nabeesa Beevi was a party. Originally, an order was passed for joint trial of O.S.Nos.17 of 1989 and 101 of 1989. Subsequently, that order was reviewed and the suits were ordered to be tried separately. When O.S.No.101 of 1989 came up for hearing, the defendants remained absent. They were set ex-parte. The trial court passed a preliminary decree on 17.1.2008 in O.S.No.101 of 1989. Subsequently, on the application made by the plaintiffs, final decree was also passed on 11.3.2009. In O.S.No.101 of 1989, Nabeesa Beevi is not shown as a person of unsound mind. The case of the petitioner is that Nabeesa Beevi was of unsound mind and she should have been represented by a guardian in O.S.No.101 of 1989. 3. O.S.No.312 of 2010 on the file of the court of the O.P.(Civil) No.90 of 2011 3 Munsiff of Vaikom was filed by Laila Beevi, the daughter of Nabeesa Beevi for a declaration that the decree in O.S.No.101 of 1989 is not binding on the plaintiff or her family members and also the plaint schedule property therein. O.S.No.312 of 2010 is pending. 4. Execution proceedings were initiated in O.S.No.101 of 1989. In the execution proceedings, Nabeesa Beevi represented by her daughter Laila Beevi filed E.A.No.423 of 2010 (Exhibit 12) praying for a stay of the execution proceedings pending disposal of O.S.No.17 of 1989 and O.S.No.312 of 2010. It is stated that no orders were passed on Exhibit P12. 5. The learned counsel appearing for the respondents submitted that in the Execution Petition, delivery was not ordered. It is also admitted that E.A.No.423 of 2010 was not disposed of. 6. I do not find any ground to grant relief No.(i). In so O.P.(Civil) No.90 of 2011 4 far as relief No.(ii) is concerned, I am of the view that a direction can be issued to the executing court in O.S.No.101 of 1989 to consider and dispose of Exhibit P12 before ordering delivery. Accordingly, the Original Petition is disposed of as follows : (i) The Munsiff Court, Vaikom, the executing court in O.S.No.101 of 1989, shall consider and dispose of E.A.No.423 of 2010 before ordering delivery in E.P.No.164 of 2010. (ii) No request for adjournment shall be made by the petitioner in E.A.No.423 of 2010 when that application is taken up for hearing by the executing court. (iii) The executing court shall dispose of E.A.No.423 of 2010 within a period of two months. K.T.SANKARAN JUDGE csl