IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 24181 of 2008(D) -------------------------- AGAINST THE ORDER IN AS.253/06 IN AS.251/2006 of ADDL. DISTRICT COURT, PARAVUR OS.278/2002 of MUNSIFF COURT,ALUVA (EP.4/08,EA.51/08) .................... PETITIONER: ------------ SURESH BABU,S/O. KUMARAN, THACHETTU HOUSE, ASOKAPURAM, ALUVA BY ADV. SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.PRAMOD DAS LOHYA RESPONDENTS: ------------- 1. SRI.MOHAMMED ASEEM, S/O.KUNJAL NAINA VEZHAPPILLY HOUSE, PLACE ROAD, ALUVA 2. SMT. HALEEMA NAINA, S/O.KUNJAL NAINA,VEZHAPPILLY HOUSE, PLACE ROAD, ALUVA 3. SRI.V.K.HARIS VEZHAPPILLY HOUSE, PLACE ROAD, ALUVA. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 24181 OF 2008 =========================== Dated this the 13th day of August, 2008 JUDGMENT This petition is filed under Article 227 of the Constitution of India challenging Ext.P4 order passed by the Munsiff Court, Aluva in E.A.51/2008 in E.P.4/2008 in O.S.No.278/2002, dismissing the application filed for stay of execution of the decree. A decree was granted in favour of respondents in O.S.278/2002 which was finally settled by this court in R.S.A.142/2008 by judgment dated 12.2.2008. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that though the claim petition filed by the petitioner in O.S.328/1987, which decree respondents rely to establish their title, was dismissed under Ext.P6 order A.S.251/2006 is filed before District Court, North Paravur and under Ext.P7 order was passed by W.P.(C)24181/2008 2 Additional District Judge, an order of stay was granted and petitioner has reasonable chance of success in the claim petition and therefore executing court should have stayed the execution proceedings till the disposal of A.S.251/2006. Learned counsel also argued that challenging the decree in O.S.328/1987 a separate suit is instituted as O.S.67/2005 before Sub Court, North Paravur and petitioner believes that decree in O.S.328/1987 will be set aside in that suit and if so the decree holder will not be entitled to the title which was upheld in R.S.A.142/2008. Learned counsel also argued that Ext.P1 order in the review petition shows that this court found that if ultimately the final decree in O.S.328/1987 is to be set aside, petitioner is entitled to seek appropriate relief and so if before disposal of the suit or the appeal, the property is to be taken delivery of and the bunk shop is to be demolished, petitioner will not be in a position to seek any relief and in such circumstance, learned Munsiff W.P.(C)24181/2008 3 should have stayed the execution. 3. On hearing the counsel, I do not find any reason to interfere with Ext.P4 order or to direct the executing court to stay the execution proceedings as sought for. If ultimately petitioner is to succeed in A.S.251/2006 which may enable petitioner to claim the property covered under the decree in O.S.328/1987, at that stage petitioner is entitled to seek redelivery and then if the bunk shop is not there petitioner can claim damages. I do not find any reason to deny the fruits of the decree to respondents which was earned after a protracted battle. Writ Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006