IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 OP(C).No. 3501 of 2011(O) -------------------------------------- EP.49/2011 IN OS.548/2002 of MUNSIFF COURT, KOTTARAKKARA. .................... PETITIONER/5TH JUDGMENT DEBTOR --------------------------------------------------------- SARASAN, S/O.THAMPI, VALLIVILA VEEDU, PAVITHRESWARAM MURI, PAVITHRESWARAM VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.K.V.ANIL KUMAR RESPONDENTS/DECREE HOLDER -------------------------------------------------- 1. KUNJU KOSHY, S/O.GEEVARGHESE, PUNNAVILA PUTHEN VEEDU, PAVITHRESWARAM MURI, PAVITHRESWARAM (PO), KOTTARAKKARA TALUK, PIN- 691 624. 2. E.J. ALEXANDER, ELAVILAYIL HOUSE, PAVITHRESWARAM MURI, PAVITHRESWARAM VILLAGE, KOTTARAKKARA TALUK, NOW RESIDING AT D-182, SAINIK PARK, NEAR RAMESWARAM MANDHIR, VASANA ROAD, VADODARA, REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.MATHAI, S/O.YOHANNAN, SUN MOON HOUSE, PAVITHRESWARAM MURI, PAVITHRESWARAM (PO), KOTTARAKKARA TALUK-691 624. R1 & R2 BY ADV. SRI.B.MOHANLAL, SRI.T.PRASAD, SRI.SAIJU S. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 3501 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT-P1. TRUE COPY OF THE JUDGMENT IN O.S.548/2002 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA. EXHIBIT-P2. A TRUE COPY OF THE I.A.2364/2009 IN O.S.548/2002 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA. EXHIBIT-P3. A TRUE COPY OF THE ORDER DATED 17.09.2010 IN I.A.2364/2009 IN O.S.548/2002 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA. EXHIBIT-P4. A TRUE COPY OF THE C.M.A.NO.47/2011 OF THE SUB COURT, KOTTARAKKARA. EXHIBIT-P5. A TRUE COPY OF THE I.A.1332/2011 IN C.M.A.NO.47/2011 OF THE SUB COURT, KOTTARAKKARA. EXHIBIT-P6. A TRUE COPY OF THE I.A.1331/2011 IN C.M.A.47/2011 OF THE SUB COURT, KOTTARAKKARA. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3501 of 2011 -------------------------------------- Dated this the 9th day of December, 2011. JUDGMENT Petitioner is the 5th judgment debtor in E.P.No.49 of 2011 in O.S.No.548 of 2002 of the court of learned Munsiff, Kottarakkara. Respondents have obtained Ext.P1, exparte decree declaring the title and possession they claimed over plaint A and B schedules and restraining petitioner and others from trespassing into the said properties. The decree also directs petitioner and others to restore the eastern boundary of plaint A schedule and western boundary of plaint B and C schedules. Petitioner filed Ext.P2, application to set aside the exparte decree but that was dismissed by Ext.P3, order which is challenged before the learned Sub Judge, Kottarakkara in Ext.P4, C.M.Appeal with Ext.P5, application to condone the delay of 376 days. Grievance of petitioner is that even before the application for stay is considered by the learned Sub Judge in the C.M.Appeal, respondents are proceeding with execution of the decree. Hence this Original Petition for staying the execution proceedings. 2. 1st respondent is served but, 2nd respondent is not served. Having regard to the manner in which I propose to dispose of this Original Petition notice to the 2nd respondent is dispensed with. OP(C) No.3501/2011 2 3. It is submitted by learned counsel that execution petition is posted on 15.12.2011. Since the appeal has not been admitted by the learned Sub Judge as delay is not so far condoned, I am inclined to grant some relief to the petitioner. Resultantly this Original Petition is disposed of as follows: It is directed that execution of Ext.P1, decree to the extent it related to the mandatory injunction alone will stand in abeyance for a period of one month from 15.12.2011 or till learned Sub Judge, Kottarakkara passes orders on the application for stay in the C.M.Appeal, whichever is earlier. Learned Sub Judge shall pass orders on the pending applications on its merit untrammelled by the directions contained in this judgment. THOMAS P.JOSEPH, Judge. cks