IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No.3645 of 2009 (H) --------------------------------- O.S.801/98 OF II ADDL. M.C., ERNAKULAM .................... PETITIONER: --------------- PREETHI K.D., D/O.DASAN, KANIYARUTHARA HOUSE, PONNARIMANGALAM DESOM, MULAVUKAD VILLAGE, MULAVUKAD. BY ADV. SRI.T.K.VENUGOPALAN SRI. SHIBU JOSEPH RESPONDENT: ---------------- UNNIKRISHNAN P.V., S/O.NARAYANAN, PULITHARA NIKARTHIL HOUSE, RESIDING AT KANIYARUTHARA, PONNARIMANGALAM DESOM,MULAVUKAD VILLAGE, MULAVUKAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.3645 of 2009 ------------------------------------------------ Dated this the 3rd day of February, 2009 JUDGMENT Heard the counsel for the petitioner. Petitioner is the plaintiff in O.S.1244/08 on the file of the Munsiff's Court, Ernakulam. The suit was for a decree of permanent prohibitory injunction restraining the respondent from trespassing into the scheduled property and converting it into a pathway under cover of executing a decree obtained by him in O.S.801/98 without impleading the petitioner/plaintiff. 2. It is submitted that the petitioner is not claiming under any of the defendants in Ext.P2 suit (O.S.801/98). Counsel submits that interim injunction on the lines prayed for in the suit was applied for vide I.A.7825/08 and that was granted ex parte initially and subsequently that was vacated and the W. P. C. No.3645 of 2009 -2- injunction petition was dismissed vide order dt.30/10/08; that C.M.A.115/08 was filed before the District Court, Ernakulam assailing the said dismissal and though an interlocutory application was moved therein for injunction as the respondent entered appearance, the lower appellate court heard arguments on the C.M. Appeal itself on 31/01/09 and has posted the case for judgment to 07/02/09. It is submitted that in the event of judgment in C.M.A.115/08 being in favour of the petitioner/plaintiff, if the decree in O.S.801/98 is executed and pathway is formed through the property of the petitioner, irreparable injury will be caused to the petitioner/plaintiff and that till judgment is passed by the lower appellate court in C.M.A.115/08 the execution of the decree in O.S.801/98 be stayed. W. P. C. No.3645 of 2009 -3- 3. It is also submitted by counsel for the petitioner that in execution of the decree in O.S.801/98 the court has passed orders yesterday to cut open a pathway through the scheduled property with the assistance of a Village Officer though for want of assistance of Village Officer, the work could not be done yesterday and that his knowledge is that pathway is not cut open till this time viz. 3.30 p.m. 4. In the result, I order that the decree in O.S.801/98 on the file of the Munsiff's Court, Ernakulam shall not be executed for a period of one week from today in case the decree has not already been executed by this time. The above order is passed with a view to see that in case the petitioner is successful in C.M.A.115/08, he will not be rendered unable to get any relief. W. P. C. No.3645 of 2009 -4- 5. With this direction, I dispose of this Writ Petition. Counsel for the petitioner is directed to produce a copy of this judgment before the execution court forthwith. 6. Issue copy of this judgment to the counsel for the petitioner urgently. K.P.BALACHANDRAN, JUDGE kns/-