IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 WP(C).No. 21217 of 2007(A) -------------------------------------- OS.1056/2005 of PRL.M.C.,ERNAKULAM .................... PETITIONER: ------------------- 1. T.O.ALEYAS, S/O.LATE KURUVILLA UNNITHAN, THOTTATHIL, RAMACHIRA, MUTHOOR P.O., THIRUVALLA. 2. BINOJ T.BABY, S/O.LATE T.O.BABY, MARY SADANAM, THURUTHIKKAD P.O., MALLAPPALLY. BY ADV. SRI.A.M.SHAFFIQUE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.ANIL D. NAIR RESPONDENTS: ----------------------- 1. T.O.ABRAHAM, S/O.LATE KURUVILLA UNNITHAN MALIYEKKAL HOUSE, THURUTHIKKAD P.O., MALLAPPALLY. 2. BINU ZACHARIAH, S/O.LATE T.S.SKARIAH, URUMBIKUNNEL HOUSE, THURUTHIKKAD P.O., MALAPPALLY. BY ADV. SRI.V.AJAKUMAR SRI.T.M.CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21217/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER IN IA. NO.4929/06 IN OS. 1056/2005 DT.18.8.06 OF THE MUNSIFF'S COURT, ERNAKULAM. EXT.P2:- COPY OF THE PLAINT IN OS. NO.1056/2005 OF MUNSIFF'S COURT, ERNAKULAM DT. 31.7.05. EXT.P3:- COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 AND 2 IN OS. NO.1056/05 DT. 11.11.05. EXT.P4:- COPY OF THE IA. NO.4929/06 IN OS. NO.1056/05 DT. 15.6.06 FILED BY THE RESPONDENTS. ET.P5:- COPY OF THE OBJECTIONS IN IA. NO.4929/06 IN OS. NO.1056/05 DT FILED BY THE PETITIONER. EXT.P6:- COPY OF THE COMMON JUDGMENT DT. 20.7.06 IN WP(C) NO.16792/06 AND WPC NO.16364/2006. EXT.P7:- COPY OF THE REPLICATION DT. 18.2.06 FILED BEFORE THE MUNSIFF'S COURT, ERNAKULAM IN OS. NO.1056/05 ALONG WITH AFFIDAVIT. EXT.P8:- COPY OF THE JUDGMENT DT. 21.3.07 IN WPC. NO.27129/06. EXT.P9:- COPY OF THE PETITION IN RCP NO.118/06 DT. 14.8.06. /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 21217 OF 2007 = = = = = = = = = = = = = = = Dated this the 24th day of January, 2008. J U D G M E N T This writ petition is preferred against Ext.P1 order of the Munsiff Court, Ernakulam. The two points considered by the Court below is, one regarding the stay under Section 10 of CPC of the suit O.S.1056/05 till the disposal of the suit by the Subordinate Judge, Thiruvalla in O.S.109/04 and the other regarding the maintainability of the case to be tried as a preliminary matter under Order 14 Rule 5 and Rule 2(2) of CPC. 2. So far as the order under Section 10 CPC is concerned the suit O.S.1056/05 is filed by the plaintiffs on the ground that the two plaintiffs have obtained different extents of property by separate documents and that the first defendant has also obtained a property by a separate document and at the time of purchase of these properties W.P.C 21217 2007 -:2:- were lying as one compound with a building therein and therefore demarcation of the property is necessary for a proper enjoyment of the property. 3. On the other hand the defendant would contend the property belongs to the firm and not to any individual and therefore a suit for partition as O.S.109/04 is filed before the Subordinate Judge's Court Thiruvalla and it is pending consideration. So the question that is to be considered is whether the property is a property of the firm which is divisible or it is an individual property as contended by the plaintiffs in the suit. This is a larger issue which has to be decided in the suit for partition which is pending before the Subordinate Judge, Thiruvalla. Therefore I concur with the finding of the Court below that O.S.1056/05 has to be stayed under Section 10 CPC. 4. The next question is regarding the maintainability of the suit. Since the larger issue is ordered to be decided in the suit for partition which will depend upon the result in that suit there is no point at this stage to decide the question of maintainability of the suit. Therefore I leave open the question of maintainability for fresh consideration after W.P.C 21217 2007 -:3:- disposal of partition suit O.S.109/04 pending before the Subordinate Judge, Thiruvalla. To this extend the order passed by the trial court is modified. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-