IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 OP(C).No. 67 of 2011(O) ------------------------------------ O.S.NO.422/2007 OF MUNSIFF COURT, CHITTUR. ........ PETITIONERS: ---------------------- 1. KRISHNAN NAIR, S/O. NARAYANAN NAIR, 3/106 KAVARAKKODU, THATHAMANGALAM, PALAKKAD DISTRICT - 678 102. 2. VIJAYENDRAN, S/O.KRISHNAN NAIR, 3/106 KAVARAKKODU, THATHAMANGALAM. PALAKKAD DISTRICT- 678 102. BY ADV. SRI.T.K.SANDEEP RESPONDENT(S): ---------------------------- MUHAMMED KHANEEFA, S/O.ABDUL SALAM, PALLITHERUVU, PUDUNAGARAM P.O. PALAKKAD DISTRICT - 678 503. BY ADV. SRI.JIJO PAUL THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(C) NO.67/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 03/07/2010 IN I.A.NO.992/2010 IN O.S.NO.422/2007 OF THE MUNSIFF COURT, CHITTUR. P2: COPY OF THE AFFIDAVIT DTD. 22/12/2010 IN EA.NO.689/2010 IN E.P.NO.247/1010 IN O.S.NO.422/2007 FILED BEFORE THE MUNSIFF COURT, CHITTUR. P3: COPY OF THE ORDER DTD. 01/01/2011 IN E.A.NO.689/2010 IN E.P.NO.247/2010 IN O.S.NO.422/2007 FILED BEFORE THE MUNSIFF COURT, CHITTUR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss K.T.SANKARAN, J. ------------------------------ O.P(C).No.67 OF 2011 ------------------------------ Dated this the 21 st day of January, 2011 JUDGMENT The respondent filed O.S.No.422 of 2007 on the file of the Court of Munsiff, Chittur against the petitioners for mandatory injunction directing the defendants to vacate the plaint schedule building. According to the plaintiff, the defendants are licencees. 2. The defendants contended that at the time of entrustment they had paid Rs.75,000/- to the plaintiff and the interest thereon was agreed to be taken as the rent or licence fee for the premises. It is stated that the defendants have also filed a suit for realisation of Rs.75,000/-. 3. O.S.No.422 of 2007 was decreed ex parte on 6.4.2010. The defendants filed I.A.No.992 of 2010 under Order 9 Rule 13 of the Code of Civil Procedure to set O.P(C).No.67 OF 2011 2 aside the ex parte decree. That application was dismissed on 3.7.2010. The petitioners/defendants filed CMA No.107 of 2010 on the file of the Court of the District Judge, Palakkad challenging the order dated 3.7.2010 in I.A.No.992 of 2010. There is a delay of 21 days in filing CMA No.107 of 2010 and an application was filed by the petitioners to condone the delay. It is stated that the CMA and the petition for condonation of delay are posted to 2.2.2011. 4. Meanwhile, EP No.247 of 2010 filed by the respondent/decree holder was proceeded with. The petitioners filed EA No.689 of 2010 to adjourn the delivery to a date after 2.2.2011 so that by that time the appellate court would be able to decide the application for condonation of delay in CMA No.107 of 2010. The Executing Court dismissed that application on 1.1.2011. Thereafter, on 5.1.2011 delivery was ordered by the Executing Court. 5. In the circumstances mentioned above, the petitioner has filed this Original Petition challenging O.P(C).No.67 OF 2011 3 the order dated 1.1.2011 in E.A.No.689 of 2010. 6. It is not disputed that the decree passed is an ex parte decree. It is also not in dispute that the petitioners have filed a suit for realisation of Rs.75,000/- from the respondent. The application for setting aside the ex parte decree was dismissed. It is not in dispute that the petitioners have filed C.M.Appeal challenging that order. There is delay in filing the CMA. It is also not disputed that the application for condonation of delay in filing CMA is posted to 2.2.2011. Meanwhile, delivery was ordered. It is only just and proper to keep in abeyance the proceedings for delivery pending the disposal of the application for condonation of delay in CMA No.107 of 2010. Since the application is posted to 2.2.2011, it is only proper to issue a direction to the District Court, Palakkad to consider and dispose of that application without delay. If the delay is condoned, the petitioners would be able to pray for appropriate interim orders. To facilitate the District Court, Palakkad to dispose of the application for condonation O.P(C).No.67 OF 2011 4 of delay and for other reliefs, it is only just and proper to keep in abeyance the order for delivery in E.P.No.247 of 2010 for a period of one month. Accordingly, the Original Petition is disposed of as follows: a) The order for delivery passed in E.P.No.247 of 2010 in O.S.No.422 of 2007 Munsiff Court, Chittur will stand stayed for a period of one month. b) The District Court, Palakkad will consider and dispose of the application for condonation of delay in filing CMA No.107 of 2010 expeditiously and at any rate before 10.2.2011. K.T.SANKARAN, JUDGE. cms