IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 WP(C).NO. 17967 OF 2010(O) ------------------------------------------ AGAINST THE ORDER IN IA 1538/2010 IN OS.124/2010 OF I ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): ----------------------- CHRISTUDAS,S/O.THANKAYYAN NADAR, ROADARIKATHUPUTHEN VEEDU,EERATTINPURAM,VELIYANCODE P.O.PERUMPAZHUTHOOR VILLAGE, NEYYATTINKARA TALUK, P/A.HOLDER,REP.BY HIS WIFE,KAMALAMMA,2ND PLAINTIFF IN O.S.NO.1/39/2009,ROADARIKATHUPURAN VEEDU,EERAT- TINPURAM,VELIYANCODE,P.O.PERUMPAZHUTOOR(V)NEYYATTI BY ADV. SRI.POOVAPPALLY M.RAMACHANDRAN NAIR RESPONDENT(S): ------------------------- KARUNAKARAN NADAR, S/O.NARAYANAN NADAR, KUZHIVILA THEKKEY PUTHEN VEEDU,PERUNKADAVILA DESOM, PERUNKADAVILA VILLAGE, NEYYATTINKARA TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.17967 of 2010 ==================================== Dated this the 10th day of June, 2010 J U D G M E N T Plaintiff in O.S. No.1139 of 2009 of the court of learned Second Additional Munsiff, Neyyattinkara has filed this Writ Petition challenging Ext.P9, order on I.A. No.1538 of 2010 appointing Advocate Commissioner to inspect property in O.S. No.124 of 2010 and submit report. O.S. No.124 of 2010 is a suit filed by respondent against petitioner. Petitioner filed O.S. No.1139 of 2009 in the same court against respondent for a decree for declaration and fixation of boundary. Since the suit is in respect of the very same property petitioner has filed application (Ext.P8) under Section 10 of the Code of Civil Procedure (for short, “the Code”) to stay trial of O.S. No.124 of 2010 and that application is pending. It is contended by learned counsel that when that application is pending learned Munsiff should not have allowed I.A. No.1538 of 2010 in O.S. No.124 of 2010 appointing Advocate Commissioner. Learned counsel requests that learned Munsiff may be directed to dispose of Ext.P8, application. There is a further prayer in the Writ Petition to set aside Ext.P9, order on I.A. W.P(C) No.17967 of 2010 -: 2 :- No.1538 of 2010 in O.S. No.124 of 2010 and stay operation of the said order. 2. Concededly application for stay filed under Sec.10 of the Code preferred by petitioner in O.S. No.124 of 2010 has not been disposed of. Even if the application for stay is allowed it is only regarding trial of the suit. The word 'trial' used in Sec.10 of the Code must be given a limited interpretation. It has been held in Balakrishnan v. Velayudhan (1979 KLT 827), Vrinda v. Indira Devi (1994 [1] KLT 448), Indian Bank v. M.S. Co-op. Marketing Fedn. Ltd. (AIR 1998 SC 1952) and Sujanbai v. Motiram (AIR 1980 Bombay 188) that notwithstanding stay granted under Sec.10 of the Code it is open to the court to entertain interlocutory applications in the suit and pass appropriate orders. In Sujanbai v. Motiram (supra) it is held that the word 'trial' should be understood as meaning final hearing of the matter consisting of examination of witnesses, filing documents and addressing arguments. As such request to set aside Ext.P9, order appointing Advocate Commissioner in O.S. No.124 of 2010 for the mere reason that application for stay of W.P(C) No.17967 of 2010 -: 3 :- trial of that suit is pending cannot be allowed. Writ Petition is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv