IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 OP(C).No. 3022 of 2011(O) ------------------------- AGAINST THE ORDER DATED 20/08/2011 IN IA.619/2011 IN AS.55/2011 of SUB COURT, KASARAGOD .................... PETITIONERS ----------------- 1. DEVAKI, W/O.LATE APPANNA NAIK, BEDAGUDDE HOUSE, NELLITHADKA, BAYAR VILLAGE, KURUDAPADAVU, KASARAGOD TALUK, KASARAGOD DISTRICT. 2. KRISHNAPPA NAIK, S/O.LATE APPANNA NAIK, BEDAGUDDE HOUSE, NELLITHADKA, BAYAR VILLAGE, KURUDAPADAVU, KASARAGOD TALUK, KASARAGOD DISTRICT. 3. JAYALAKSHMI @ JANAKI, W/O.SUBBA NAIK, KAJAPPADY HOUSE, VITTAL (PO), BENTWAL TALUK, KARNATAKA STATE. 4. SARASWATHI @ PARVATHI, W/O.NARAYANA NAIK, KALAYATHODY HOUSE, KUMBDAJE VILLAGE, KUMBDAJE (PO), KASARAGOD TALUK, KASARAGOD DISTRICT. 5. RAMA NAIK, S/O.LATE APPANNA NAIK, BEDAGUDDE HOUSE, NELLITHADKA, BAYAR VILLAGE, KURUDAPADAVU, KASARAGOD TALUK, KASARAGOD DISTRICT. 6. ANNU NAIK, S/O.LATE APPANNA NAIK, BEDAGUDDE HOUSE, NELLITHADKA, BAYAR VILLAGE, KURUDAPADAVU, KASARAGOD TALUK, KASARAGOD DISTRICT. 7. JANARDHANA NAIK, S/O.LATE APPANNA NAIK, BEDAGUDDE HOUSE, NELLITHADKA, BAYAR VILLAGE, KURUDAPADAVU, KASARAGOD TALUK, KASARAGOD DISTRICT. OP(C).No. 3022 of 2011(O) ------------------------------- 8. SADASIVA, BEDAGUDDE HOUSE, NELLITHADKA, BAYAR VILLAGE,KURUDAPADAVU, KASARAGOD TALUK, KASARAGOD DT. PETITIONERS 1 TO 4& 6 TO 8 ARE REP. BY P/A HOLDER RAMA NAIK,S/O.LATE APPANNA NAIK, 38 YEARS,BEDAGUDDE(H),NELLITHADKA,BAYAR VILLAGE, KURUDAPADAVU,KASARAGOD TALUK,KASARAGOD DISTRICT. BY ADVS. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.K.ANAND RESPONDENT: --------------- P.N.GANAPATHY BHAT, S/O.NARAYANA BHAT, ANUGRAHA, SAMPAJE VILLAGE, GOONADKA (PO), SULLIA (VIA),D.K.DISTRICT,KARNATAKA STATE, PIN 671 121. BY ADV. SRI.KODOTH SREEDHARAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 3022 of 2011(O) ----------------------------------- APPENDIX ----------- PETITIONER(S) EXHIBITS ---------------------------------- EXHIBIT-P1. TRUE COPY OF THE ORDER DATED 21.07.2011 OF THE PRINCIPAL MUNSIFF COURT, KASARAGOD IN E.A.NO.395 2010 IN E.P.NO.104/2007 IN O.S.NO.289/1986. EXHIBIT-P2. A TRUE COPY OF THE MEMORANDUM OF APPEAL IN A.S.NO.55/2011 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KASARAGOD. EXHIBIT-P3.A TRUE COPY OF THE I.A.NO.619/2011 IN A.S.NO.55/2011 ON THE FILES OF THE SUBORDINATE JUDGE'S COURT, KASARAGOD. EXHIBIT-P4.A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.619/2011 IN A.S.NO.55 OF 2011 BEFORE THE SUBORDINATE JUDGE'S COURT, KASARAGOD. EXHIBIT-P5.A TRUE COPY OF THE ORDER DATED 20.08.2011 IN I.A.NO.619 OF 2011 IN A.S.NO.55 OF 2011 OF THE SUBORDINATE JUDGE'S COURT, KASARAGOD. RESPONDENTS' EXHIBITS : NIL ------------------------------ / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3022 of 2011 -------------------------------------- Dated this the 22nd day of November, 2011. JUDGMENT Respondent appears through counsel. 2. This Original Petition is in challenge of Ext.P5, order passed by the learned Sub Judge, Kasaragod on 20.08.2011 on I.A.No.619 of 2011 in A.S.No.55 of 2011. Petitioners made a claim under Order XXI, Rule 97 of the Code of Civil Procedure (for short, “the Code”) in O.S.No.289 of 1986 of the court of learned Munsiff, Kasaragod. That claim was dismissed by the learned Munsiff against which petitioners filed A.S.No.55 of 2011. In that appeal petitioners filed I.A.No.619 of 2011 for stay of execution of the decree in O.S.No.289 of 1986. That application was dismissed by Ext.P5, order which is under challenge. 3. Though various contentions are raised in this Original Petition as against correctness of Ext.P5, order when the matter came up for hearing learned counsel for petitioners submitted that the request in this Original Petition is confined to a request to direct learned Sub Judge to dispose of A.S.No.55 of 2011 as early as possible. 4. When this matter came up for admission this Court by order dated 29.09.2011 had directed that delivery of property in E.P.No.104 of 2007 in O.S.No.289 of 1986 of the court of learned Munsiff, Kasaragod will stand OP(C)No.3022/2011 2 adjourned to a day after three weeks from 22.09.2011. Thereafter that order was being extended further. 5. Having heard learned counsel on both sides I am inclined to think that the appropriate course is to direct learned Sub Judge to dispose of A.S.No.55 of 2011 as early as possible having regard to the fact that the suit is of the year, 1986 and the execution petition was filed in the year, 2007. But, until disposal of the appeal delivery of property will stand in abeyance. Resultantly this Original Petition is disposed of as follows: i. Learned Sub Judge, Kasaragod is directed to dispose of A.S.No.55 of 2011 if preliminary steps are over as early as possible, at any rate within three months from the date on which a copy of this judgment is received by the learned Sub Judge. ii. It is directed that delivery of property ordered in E.P.No.104 of 2007 in O.S.No.289 of 1986 of the court of learned Munsiff, Kasaragod will stand in abeyance until disposal of the appeal as aforesaid. THOMAS P.JOSEPH, Judge. cks