IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WP(C).No. 2972 of 2010(O) ------------------------- OS.404/1991 of MUNSIF COURT, KUTHUPARAMBA .................... PETITIONER:- KIZHAKKE THAKKIDIYIL VARKEY, S/O.JOSEPH, AARALAM AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. MR. CIBI THOMAS RESPONDENTS: 1. MARY THOMAS, W/O.THOMAS, KALLANCHERRY HOUSE, AARALAM AMSOM DESOM, NEDUMUNDA WARD NO.5, HOUSE NO.321, PAYAM P.O 2. PULIYANIKKATTU THRESSIA, W/O.MATHAI, VAYATHUR AMSOM, DESOM, TALIPARAMBA TALUK. 3. PULIYANIKKATTU ANTHRAYOSE @ PAPPACHAN, VAYATHUR AMSOM DESOM, TALIPARAMBA TALUK. 4. PULIYANIKKATTU JOSE @ JOSEPH, AGRICULTURIST, VAYATHUR AMSOM DESOM, TALIPARAMBA TALUK. 5. JOSEPH K.J., S/O.JOSEPH, KIZHAKKE THAKKIDIYIL HOUSE, AARALAM AMSOM DESOM. 6. KARINTHAKKARAMATTAM JOHNY, VAYATHUR AMSOM DESOM, TALIPARAMBA. 7. ANTO, S/O.KARINTHAKKARAMATTAM JOHNY, RESIDING -DO- 8. SIJO, S/O.KARINTHAKKARAMATTAM JOHNY, RESIDING -DO- 9. JIJI, D/O.KARINTHAKKARAMATTAM JOHNY, RESIDING -DO- THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- W.P.(C). No. 2972 of 2010 ---------------------------------------------------- Dated this the 29th day of January, 2010. JUDGMENT The 4th defendant in O.S. No. 404 of 1991 on the file of the Munsiff's Court, Koothuparamba being aggrieved by the allotment in the final decree passed in the said suit, claims to have filed an appeal before the District Court, Thalassery as A.S. No. 24 of 2009 with a petition (Ext.P3) to condone the delay of 1858 days in filing the appeal. The grievance of the petitioner is that even before the delay petition is taken up for consideration, the respondents have filed E.P. No. 6 of 2009 and the trial court is proceeding with the delivery of the plots allotted as per the final decree to the extreme prejudice of the petitioner. He, therefore, prays for an order quashing Ext.P5 order for delivery of the plots and also for a direction to dispose of the appeal pending before the District Court, Thalassery. W.P.(C) No. 2972/2010 : 2 : 2. The order for delivery passed by the trial court cannot be quashed because in the absence of a stay from a superior court, the executing court was entitled to order delivery. Since the appeal has been filed with a petition to condone the delay, this Court cannot direct the District Court to dispose of the appeal. The appeal can come into being only if the lower appellate court condones the delay in filing the appeal. Accordingly, this writ petition is disposed of directing the lower appellate court to hear and dispose of Ext.P3 petition to condone the delay in filing A.S. No. 24 of 2009 expeditiously and at any rate within six months from today after giving both sides an opportunity of being heard. The proceedings for delivery shall stand adjourned for a period of six months. Dated this the 29th day of January, 2010. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 2972/2010 : 3 :