IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WP(C).No. 6726 of 2009(O) ------------------------- AGAINST NOT DISPOSING OF IA 2213/2008 IN AS.75/2008 of SUB COURT, TIRUR AGAINST THE ORDER IN E.A. NO.23/2009 IN E.P.NO.178/08 IN O.S.2/1989 OF MUNSIFF COURT, PONNANI .................... PETITIONER(S): --------------- 1. PREMKUMAR,S/O.KUMARAN, MEPPADATH HOUSE,PURANG AMSOM, PANAMPAD DESOM,PONNANI TALUK, MALAPPURAM DISTRICT. 2. PREETHA,D/O.KUMARAN, -DO- -DO- 3. SREEJA,D/O.KUMARAN, -DO- -DO- 4. PROMODINI,W/O.KUMARAN, -DO- -DO- BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENT(S): --------------- 1. VASU,PANAMUKKIL HOUSE, P.O.EASWARAMANGALAM, MALAPPURAM DISTRICT. 2. SANTHA, -DO- 3. SREENIVASAN, -DO- 4. MANOHARAN,S/O.SANKUNNI, AYIRAPARAMBIL HOUSE P.O.EDAPPAL, PONNANI TALUK,MALAPPURAM DISTRICT. WPC 6726/09 5. SATHIAN, -DO- 6. VIJAYA,D/O.SANKUNNI, -DO- -DO- 7. PADMAVATHY,D/O.NARAYANI, MEPPADATH HOUSE,P.O.PURANG, MALAPPURAM DISTRICT. 8. CHANDRIKA, -DO- 9. SULOCHANA, -DO- 10. RAVI,S/O.NARAYANI, -DO- -DO- 11. SHEEBA,W/O.LATE RAJAN, -DO- -DO- 12. RIYA (MINOR), REP.BY 11TH RESPONDENT, -DO- -DO- 13. RAKHI (MINOR), REP.BY 11TH RESPONDENT, -DO- -DO- 14. THANKAMANI,D/O.DEVAKI, MEPPADATH HOUSE, -DO- -DO- 15. RAJAN,S/O.DEVADI, -DO- -DO- 16. CHANDRAN, -DO- 17. SEKHARAN,S/O.KARAPPAN, KANNATH HOUSE P.O.PAZHANJI, THALAPPILLY TALUK,THRISSUR DISTRICT. 18. RAJA, -DO- 19. PRADEEP, -DO- THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- WPC.No.6726 of 2009 --------------------------------------------- Dated this the 2nd day of March, 2009 JUDGMENT The petitioners are respondents in E.P.No.178 of 2008 in O.S.No.2 of 1989 on the file of the court of the Munsiff of Ponnani. The suit is for partition. Against the final decree passed in the case, the petitioners have filed A.S.No.75 of 2008 on the file of the Sub Court, Tirur. There was delay in filing the appeal. The application for condonation of delay in filing the appeal is pending. Service is not complete in the application for condonation of delay. Therefore, the court below cannot grant an order of stay of delivery, unless and until the delay is condoned and the appeal is admitted. Meanwhile, the Execution Petition was proceeded with. It was posted for delivery. The petitioners filed an application dated 2nd February 2009 to adjourn the delivery for a period of two months. The court below by the order dated 19th February 2009 dismissed the application. The Writ Petition is filed challenging that order. There is also a prayer in the Writ Petition to issue a direction to the appellate WPC No.6726/2009 2 court to dispose of I.A.No.2213 of 2008, the petition for stay filed by the petitioners. 2. Before the executing court, the contention of the petitioners was that if the delivery is not adjourned, the appeal filed by them before the Sub Court would become infructuous. The executing court held that if the petitioners succeeded in the appeal, they can apply for restitution and that their interests would not be affected by the delivery. The contention of the petitioners that the appeal would become infructuous is without substance. The court below considered the fact that the suit was filed in the year 1989 for partition and the plaintiff has not obtained his legitimate share from the co-ownership property. Cogent reasons are stated by the court below for rejecting the prayer of stay. I do not think that there is any ground for interference in the Writ Petition filed under Article 227 of the Constitution of India. 3. As regards the prayer for a direction to the Sub Court to dispose of the application for stay, I do not think that the petitioners are entitled to the reliefs. Service of notice in the appeal is not complete. The delay in filing the appeal is not WPC No.6726/2009 3 condoned. The appeal is not admitted. So long as the delay is not condoned, the appellate court would have no power to grant stay in view of Rule 3A of Order XLI of the Code of Civil Procedure. The Writ Petition is devoid of merits and it is accordingly dismissed. K.T.SANKARAN, JUDGE csl