IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 33400 of 2009(O) -------------------------- AS.114/1994 of SUB COURT, TIRUR OS.63/1992 of MUNI-MAGI.COURT,PONNANI (EP 244 & 235/08) .................... PETITIONER(S): ------------------------- M.ABDUL RAHIMAN, S/O.KUNHUMOHAMMED HAJI, THANDAMKOLI HOUSE, P.O.GRAMAM, VELIYAMCODE, MALAPPURAM DISTRICT. BY MR.T.KRISHNAN UNNI, SENIOR ADVOCATE, MR.JAMSHEED HAFIZ, MR.K.C.KIRAN. RESPONDENT(S): --------------------------- 1. THANDAMKOLI MARIYAKUTTY, D/O.KUNHIMOIDU, THANDAMKOLI HOUSE, AYIROOR AMSOM, PUTHIYURUTHI DESOM, PONANI TALUK, MALAPPURAM. 2. THANDAMKOLI SUHARA, D/O.PALLIKUTTY UMMA, THANDAMKOLI HOUSE, AYIROOR AMSOM, PUTHIYURUTHI DESOM, PONANI TALUK, MALAPPURAM. 3. THANDANKOLI MOHAMMED ALI, S/O.KUNHIMOIDEEN, THANDAMKOLI HOUSE, AYIROOR AMSOM, PUTHIYURUTHI DESOM, PONANI TALUK, MALAPPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.33400 OF 2009 -------------------------------- Dated this the 23rd day of November 2009 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records in E.P No. 244/2008 and E.P No.235/2008 in O.S No.63/1992 on the file of Munsiff Magistrate of Ponnani. ii) Pass an order directing the court of the Munsiff-Magistrate of Ponnani to keep in abeyance all the proceedings in E.P No.244/2008 and E.P No.235/2008 in O.S No.63/1992 on its file till Exts.P4 and P5 applications are disposed of by the court of Subordinate Judge of Tirur. iii) Pass an order staying all further proceedings in E.P No.244/2008 and E.P No.235/2008 in O.S No.63/1992 on the file of Munsiff-Magistrate of Ponnani, pending disposal of the above writ petition. iv) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time. W.P.(C).No.33400 OF 2009 Page numbers 2. Petitioner is one among the legal representatives of the third defendant in O.S No.63 of 1992 on the file of Munsiff Magistrate Court, Ponnani. The above suit was one for partition in which after passing of the final decree, execution proceedings are in progress. At the stage when the court ordered delivery of the property allotted to the decree holder/plaintiff it is sought to be stayed. Predecessor of the petitioner had contended in the suit that her children too, including the petitioner have independent right over the property. Negativing that contention, the decree had been passed in the suit. An appeal preferred against the preliminary decree passed in the suit by the predecessor of the petitioner/third defendant, it is submitted, had been dismissed for nonprosecution. Petitioner has at present moved an application for restoring that appeal with a petition to condone delay. She is only canvassing the defence taken by her predecessor in the suit resisting the suit claim is the submission of the learned counsel appearing for the petitioner to urge that till orders are passed on her application to restore the appeal, atleast W.P.(C).No.33400 OF 2009 Page numbers till the restoration of the appeal or otherwise, the order passed for delivery of the property has to be kept in abeyance. Having regard to the submissions made and taking note of the facts and circumstances presented and perusing the exhibits produced especially Ext.P1 judgment and also taking note that the execution court has ordered delivery with police assistance, I find that, at this stage, it is not proper and appropriate for this court to pass any order as requested for by the petitioner invoking its visitorial jurisdiction. It will be open to the petitioner to pursue whatever legal remedies available to her in the proper forum and needless to point out if the appeal is restored and the preliminary decree is set aside she can also move for restitution under Section 144 of the Code of Civil Procedure if need be. Subject to the observations made above, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv