IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WP(C).No. 20651 of 2009(O) --------------------------------------- EP.NO.44/2003 IN OS.NO.341/1994 OF MUNSIFF COURT, PUNALUR. .................... PETITIONER: ------------------- ALIYARUKANNU RAWTHER,AGED 89 YEARS, S/O.ISMAIL RAWTHER,PEZHUMVILA VEEDU, SATHRAM MUKKU, EDAMON.P.O,VIA-PUNALUR. BY ADV. MR.T.M.ABDUL LATHEEF. RESPONDENTS: ------------------------ 1. C.SEKHAR,S/O.CHUDALAMUTHU,THUNDUVILA MANI VILASOM VEEDU,SATHRAM MUKKU,EDAMON.P.O, VIA-PUNALUR. 2. A.SHAJAHAN RAWTHER,PEZHUMVILA VEEDU, SATHRAM MUKKU,EDAMON.P.O,VIA-PUNALUR. 3. A.SALAM RAWTHER,PEZHUMVILA VEEDU, SATHRAM MUKKU,EDAMON.P.O,VIA-PUNALUR. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.20651 of 2009 - O --------------------------------- Dated this the 23rd day of July, 2009 J U D G M E N T This writ petition is filed seeking the following reliefs: “i) To call for the records relating to Exts.P1 to P7 and to issue any appropriate writ, order or direction, setting aside Ext.P5 order. ii) To issue any appropriate writ, order or direction, commanding the Munsiff Court, Punalur not to proceed with execution proceedings in E.P.No.44/2003 in O.S.NO.341/1994 till the disposal of I.A.Nos.1177 and 1178 of 2009 in R.F.A.No.150/2003 of Sub Court, Kottarakkara.” 2. Petitioner is the first defendant in O.S.No.341/1994 on the file of the Munsiff Court, Punalur. Suit was one for fixation of boundary and injunction, both prohibitory and mandatory. First respondent was the plaintiff in the suit which was decreed. Against the decree, petitioner preferred an appeal before the Sub Court, Kottarakkara and the appeal happened to be dismissed for nontaking of steps against some of the defendants who were the co-defendants in the suit. Petitioner moved an application for W.P.(C).No.20651 of 2009 - O 2 restoring the appeal, but, it was filed belatedly with a petition to condone the delay of nearly one year. Service in that petition is yet to be completed. Notice of that proceedings is stated to have been served on the decree holder/plaintiff. Meanwhile, the decree holder took steps for executing the decree and the petitioner approaching that court, filed two petitions, to keep the execution proceedings in abeyance till the application moved by him before the appellate court for restoring the appeal to file is disposed on merits. The learned Munsiff declined the relief sought for under those petitions vide Ext.P5 order. Impeaching the propriety and correctness of Ext.P5 order, this writ petition has been filed invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Having regard to the submissions made by the learned counsel for the petitioner with reference to Ext.P5 order and other materials tendered in the petition, I find no notice to the respondents is necessary and hence it is dispensed with. 4. Learned counsel for the petitioner submitted before me that dismissal of the appeal by the appellate court for the W.P.(C).No.20651 of 2009 - O 3 reason that steps have not been taken against the co-defendants when the decree holder/plaintiff was already served notice and appeared before that court was not correct as the decree granted against them in common to the defendants was challenged in the appeal. It is submitted that in view of the decree of mandatory injunction granted by the court which is impeached in appeal if the decree is executed before an opportunity is provided to the petitioner to espouse his grievances before the appellate court, provided his restoration application is allowed, it may work out grave injustice to him. Though I find the reliefs claimed in the petition are confined to seeking directions to the executing court to keep in abeyance the execution proceedings, in the nature of the facts and circumstances presented, it is appropriate and more advantageous to give a direction to the Sub Court, Kottarakkara, to dispose of the restoration application moved by the petitioner, expeditiously. Since the decree has been granted in common against the first petitioner with the other two defendants, needless to point out, in an appeal preferred the petitioner need challenge the decree impleading only the plaintiff who has been W.P.(C).No.20651 of 2009 - O 4 granted the decree and the presence of the co-defendants in the appeal is not at all necessary for effective disposal of that appeal. That being so, if any memo is filed by the petitioner/appellant as indicated above within a week from the date of judgment to dispense service on the respondents 2 and 3 in the petition preferred for restoring the appeal after condoning the delay, the court below shall hear and dispose of those petitions within two weeks thereof. If at all the applications are allowed and appeals restored, needless to point out the names of the respondents, who had not been given notice of the proceedings of restoration, shall be struck off from the memorandum of appeal, which shall be proceeded against the first respondent/decree holder. I direct the learned Munsiff, Punalur, where the execution of the decree is pending, to keep in abeyance that proceeding for a period of one month from the date of this judgment. Execution court is free to proceed after the expiry of the period with the execution of the decree, if no order is passed by any superior forum staying the execution. W.P.(C).No.20651 of 2009 - O 5 Subject to the above direction, this writ petition is closed. Handover a copy of the judgment to the counsel for the petitioner on usual terms and transmit a copy to the Munsiff Court, Punalur and Sub Court, Kottarakkara. S.S.SATHEESACHANDRAN, JUDGE. bkn/-