IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 WP(C).No. 24367 of 2010(O) -------------------------- O.S.NO.455/2003 OF SUB COURT, THRISSUR PETITIONER(S): --------------- RAFI,S/O.DEVASSY,S.N.PARK, PO POOTHOLE, THRISSUR. BY ADV. SRI.P.B.KRISHNAN SRI R.SURAJ KUMAR SMT.GEETHA P.MENON SRI N.AJITH SRI NEELAKANDAN P.M. RESPONDENT(S): --------------- 1. FRANCIS, S/O.PAILY,S.N.PARK, ARANATTUKARA VILLAGE, THRISSUR - PIN 680004. 2. BIJU,S/O.CHAKKUNNY,S.N.PARK, ARANATTUKARA VILLAGE, THRISSUR - PIN 680004. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.24367 of 2010 -------------------------------------- Dated this the 4th day of August, 2010. JUDGMENT Defendant No.7 in O.S.No.455 of 2003 of the court of learned Sub Judge, Thrissur is the petitioner before me. He is involved in a suit for partition where question regarding division of estate of late Rappai is also involved. According to the petitioner, he is entitled to succeed to the estate of Rappai on the strength of a Will (allegedly) executed by the said Rappai. Other contestants in the suit are not admitting due execution of the Will. In the meantime, there was another suit for partition where Rappai also was impleaded as a sharer and that matter is pending in this Court in A.S. No.461 of 1994. It is while so, Rappai died. In A.S.No.461 of 1994 question as to who is the legal representative of Rappai, whether petitioner in his capacity as legatee under the Will allegedly executed by Rappai or all his legal heirs are entitled to represent his estate was raised. This Court directed trial court to enter a finding as to the genuineness of the Will and accordingly trial court after collecting evidence entered a finding that the Will is genuine. That finding was forwarded to this Court in A.S. No.461 of 1994 but that was for the limited purpose of enquiry under Order XXII Rule 5 of the Code of Civil Procedure (for short, “the Code”). Since decision concerning genuineness of the Will is pending in A.S.No.461 of 1994 petitioner filed Ext.P4, application in O.S.No.455 of 2003 for stay of trial under Section 10 of the Code. No order has been passed on that application. But the suit is posted in the list for trial on WP(C) No.24367/2010 2 05.08.2010. Petitioner seeks a direction to the learned Sub Judge to dispose of Ext.P4, application and, before posting the case in the list grant sufficient time to petitioner to challenge the order in case Ext.P4, application is decided against petitioner. Learned counsel states that petitioner has practical difficulty in producing the original of Will in O.S.No.455 of 2003 since it is produced in A.S.No.461 of 1994 which is pending decision of this Court. Having regard to the facts and circumstances of the case learned Sub Judge, Thrissur is directed to dispose of Ext.P4, application under Section 10 of the Code before commencing trial in the case. Learned Sub Judge shall remove O.S.No.455 of 2003 from the list for the month of August, 2010. Writ Petition is disposed of as above. THOMAS P.JOSEPH, Judge. cks