IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 11450 of 2009(O) -------------------------- (EP.NO 294/2008 IN OS.NO.452/2006 OF ADDL.MUNSIFF COURT,CHERTHALA) .................... PETITIONERS: --------------------- 1. K.RAJENDRAN, S/O.KRISHNAN, MANGALASSERIL HOUSE, CMC XI, CHERTHALA. 2. K.P.RADHAKRISHNAN, S/O.PARAMESWARAN PILLAI, KIZHAKKEDATH HOUSE, CMC XI, CHERTHALA. BY ADVS. MR.K.JAYAKUMAR, MR.P.B.KRISHNAN, SMT.GEETHA P.MENON, MR.P.M.NEELAKANDAN. RESPONDENT: ---------------------- T.G.C.NAIR, S/O.LATE KARUNAKARAN NAIR, CHANDRADEEP, SHAKTHI NAGAR, BEHIND ROYAL PARK, KALAWAD ROAD, RAJKOT - 360 005. BY ADV. MR.V.L.SHENOY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.11450 OF 2009 (O) ----------------------------------- Dated this the 8th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i) to call for the records relating to E.P.No.294/2008 in O.S.No.452/2006 on the file of the Additional Munsiff Court, Cherthala. ii) to set aside Ext.P8 order in exercise of supervisory jurisdiction of this Honourable Court; iii) to pass an order allowing E.A.No.79/2009 in E.P.No.294/2008 in O.S.No.452/2006 on the file of the Additional Munsiff Court, Cherthala. iv) to order stay of all further proceedings in execution of the decree in O.S.No.452/2006 on the file of the Additional Munsiff Court, Cherthala and v) to grant the petitioners such other reliefs as this Honourable Court may deem fit and proper including award of costs of this writ petition. WPC.11450/09 2 2. Petitioners are the judgment debtors in O.S.No.452/2006 on the file of the Additional Munsiff Court, Cherthala, in which execution of a decree, both prohibitory and mandatory injunction, is proceeded against them at the instance of the respondent, the decree holder. Petitioners had moved an appeal challenging that decree before the Sub Court, Cherthala, but that appeal could not be taken up for consideration since there was a delay in preferring the appeal. A separate application for condonation of delay was also moved by them. Since respondent is residing outside the State, despite strenuous steps taken by the petitioners, it is submitted, notice on the delay petition could not be served and that in effect, has delayed taking up the appeal even for its admission. Meanwhile, the decree holder moved for executing the decree and on receipt of the notice, the petitioners, submitting the above facts, prayed for stay of execution of the decree till the disposal of their appeal on merits. The learned Munsiff, after hearing both sides, dismissed that application, and Ext.P8 is the copy of that WPC.11450/09 3 order. Impeaching the propriety and correctness of that order, petitioners have filed this writ petition seeking the aforementioned reliefs invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances involved, it appears, whatever be the case canvassed by the petitioners for stay of the execution, it is only just and proper that the appeal preferred by him with a delay condonation petition be taken up and disposed of at the earliest. I am not expressing any opinion whether the reasons stated in the delay condonation petition are genuine and require acceptance by the court. Since the reason stated for nonconsideration of that application is nonappearance of the respondent, who is stated to be residing outside, I enquired with the learned counsel for the respondent whether the respondent is prepared to enter appearance in the appeal before the Sub Court. The learned counsel fairly submitted that if a date is fixed by this Court, the respondent will appear WPC.11450/09 4 on that date and from his part there will be no delay in consideration of the enquiry on the delay petition and also if delay is condoned in disposing the appeal. The only request made is that if at all the appeal is taken on file after condoning the delay, a time frame may be fixed by this Court. I find the request made is bona fide and deserves to be considered. I am informed by the learned counsel for the petitioners that the appeal is posted tomorrow and the learned counsel for the respondent submitted that the respondent will enter appearance tomorrow itself by filing a memo. The learned Sub Judge, on appearance of the parties, shall proceed with the enquiry on the delay petition as expeditiously as possible, and appropriate orders thereof to be passed on the petition at the earliest, at any rate within a period of three weeks. In case, the appeal is admitted after condoning the delay, the learned Sub Judge shall endeavor to dispose the appeal within a period of four months. The execution proceedings pending before the Additional Munsiff Court, Cherthala, shall be kept in abeyance for a period of six months from the date of this judgment. Communicate a copy of the order to the learned WPC.11450/09 5 Additional Munsiff Court, Cherthala and also the learned Sub Judge, Cherthala. Ext.P8 order impugned is modified as indicted above. Writ petition is disposed accordingly. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009