IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 34598 of 2008(R) -------------------------- AGAINST THE ORDER IN EP 214/2007 IN OS.244/2005 of PRL.MUNSIFF'S COURT, KOCHI .................... PETITIONER(S): -------------------------- K.P.ANTONY, AGED 40, S/O.LATE K.V.PETER, KOCHUVELIYIL, C.C.NO.9/81, FORT KOCHI. BY ADV. MR.V.N.VASANTHA KUMAR RESPONDENT(S): --------------------------- FLORY XAVIER, AGED 57, W/O.XAVIER, KOCHUVELIYIL HOUSE, KOCHI. BY ADV. MR.GEORGE JOHNSON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34598/2008 R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEASE DEED NO.1415/77 SRO KOCHI DTD.22/06/07. P2: COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER DTD. 6/08/07. P3: COPY OF THE I.A.NO.1035/07 BEFORE THE MUNSIFF COURT DTD. 7/08/07. P4: COPY OF THE E.P.NO.214/07 BEFORE THE MUNSIFF COURT DTD. 3/10/2007. P5: COPY OF THE E.A.NO.80/2008 PASSED BY THE MUNSIFF DTD. 20/02/2008. P6: COPY OF THE ORDER IN E.A.NO.80/2008 DTD. 25/02/2003. P7: COPY OF THE ORDER IN WPC.NO.8478/2008 OF THIS HON'BLE COURT DTD. 12/03/2008. P8: COPY OF THE I.A.NO.1769/2008 DTD. 14/08/2008. P9: COPY OF THE AFFIDAVIT FILED BEFORE THE MUNSIFF COURT, KOCHI DTD. 12/11/2008. P10: COPY OF THE AFFIDAVIT FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT KOCHI DTD. 20/11/2008. P11: COPY OF THE MEMORANDUM OF APPEAL DTD. 13/02/2009 IN A.S.NO.32/2009 OF THE SUB COURT, KOCHI. P12: COPY OF THE I.A.NO.253/2009 OF THE SUB COURT, KOCHI DTD. 13/02/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 34598 OF 2008 R ```````````````````````````````````````````````````` Dated this the 2nd day of July, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “ Set aside or stay the E.P. proceedings and order of delivery dtd. 20.11.2008 as per E.P.No.214/2007 in O.S.No.244/2005 on the file of the learned Principal Munsiff Court, Kochi till the disposal of A.S.No.51/2007 and allow the O.S.No.244/2005. The petitioner applied for the carbon copy of the order in E.P.No.214/2007 on 20.11.2008, but it is not received and hence it could not be produced before this Hon'ble Court.” 2. Petitioner is the plaintiff in OS.No.244/05 on the file of the Principal Munsiff Court, Kochi. Suit was one for partition. Respondent was the defendant in that suit. In the suit, the respondent raised a counter claim in her written statement. After trial, the suit was dismissed and a decree upholding counter claim was granted. Against the dismissal of the suit, the petitioner/ plaintiff preferred an appeal as AS.No.51/07 before the Sub Court, Kochi. The respondent/ defendant moved for execution of the decree granting the counter claim raised in the suit. The writ WPC.34598/08 : 2 : petition has been filed by the petitioner/ plaintiff invoking the supervisory jurisdiction of this court under Article 227 of the Constitution of India for the aforementioned relief mainly seeking a stay of the execution proceedings taken before the execution court for executing the decree granted under the counter claim. 3. From the submissions made at the time of hearing and also from the facts and circumstances presented with reference to the materials produced, I find the petitioner had approached the court in which his appeal is pending for stay of execution of the decree granted in favour of the respondent/ defendant but it was declined. He has preferred an appeal belatedly against the decree granting the counter claim, is the submission of the learned counsel for the respondent. It is further submitted that no order has been granted in that appeal also to stay the execution of the decree impugned in that appeal. Having regard to the facts and circumstances presented, I find that petitioner is incompetent to seek the aid of this court for staying the execution of a validly passed decree obtained by the respondent/ defendant in a full fledged trial. He has to work out his remedies in his appeal which WPC.34598/08 : 3 : is already preferred challenging the decree granted in favour of the respondent. If at all the appeal is decided in his favour, he can have recourse to the provisions under Section 144 of the CPC for restitution. The writ petition is devoid of merit and it is dismissed. sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge