IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 16952 of 2008(R) -------------------------- AS.86/2008 of II ADDL. DISTRICT COURT, PALAKKAD OS.721/2006 of PRL.MUNSIFF COURT, PALAKKAD .................... PETITIONER: ------------ P.PRAKASH, S/O.M.VELAYUDHAN NAIR, RESIDING AT SUGANDHI BHAVAN, CHANDRANAGAR COLONY, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: ------------- 1. A.M.ISACK, S/O.AHAMED SHAH 2. JASMINE ISACK, W/O.A.M.ISACK BOTH ARE CONDUCTING BUSINESS AT PLYWOOD AND GLASS SHOP, 9/195, 196 CHANDRANAGAR, PALAKKAD. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.16952 of 2008 ------------------------------- Dated this the 9th June, 2008. J U D G M E N T Petitioner is the plaintiff in O.S.No.721/2006, on the file of the Munsiff Court, Palakkad. A decree for recovery of possession was granted against respondents/defendants. They challenged the decree and judgment before the District Court, Palakkad, in A.S.No.86/2008. During the pendency of the appeal, they moved I.A.No.441/2008, an application to stay execution of the decree, under Rule 5 of Order XLI of Code of Civil Procedure. Under Ext.P2 order, learned District Judge granted an order of stay directing respondent herein to deposit arrears of rent decreed by the lower court. Ext.P2 order is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned senior counsel appearing for the petitioner argued that as per the decree, arrears of rent was directed to be adjusted towards the advance paid and therefore there may not be any arrears of rent as such to be deposited and considering the W.P.(C) No.16952/2008 2 fact that Kerala Building (Lease and Rent Control) Act is not applicable to the area where the plaint schedule building is situated, First appellate court should not have granted an order of stay. The learned counsel further argued that even if Ext.P2 order is not interfered, there may be a direction to the First Appellate court to dispose the appeal as expeditiously as possible. 3. When the First appellate court granted an order of stay of execution of the decree for recovery of possession, during the pendency of the first appeal, it cannot be interfered with, as other wise, the very appeal would become infructuous. If the grievance of the petitioner is that the appeal will be dragged on, there will be a direction to District Judge, Palakkad, to dispose of A.S.No.86/2008, as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of the judgment. The writ appeal is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.