IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 WP(C).No. 3218 of 2008(G) ------------------------------------- OS.37/2004 OF SUB COURT,KATTAPPANA. .................... PETITIONER/PETITIONER NO.1/PLAINTIFF NO.1: --------------------------------------------------------------------- PRATHAPKUMAR, AGED 27, S/O LATE RADHAKRISHNAN NAIR, DOOR NO.144/80, ROAD RADHASWAMY NAGAR, MIRANDA LANE, IST STREET, OPPOSITE ANNAMALAI STORE, THENI P.O., TAMILNADU STATE. BY ADV. SRI.N.K.MOHANLAL, ADV. SRI.T.A.SHINE. RESPONDENTS/ RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------------------------------------------------------------------------------- 1. JAMES, S/O XAVIER, KOMBANATHOTTAM HOUSE, PULIYANMALA KARA, KATTAPPANA VILLAGE. 2. JOSE, S/O XAVIER, KOMBANATHOTTAM HOUSE, PULIYANMALA KARA, KATTAPPANA VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C) No.3218 OF 2008 ===================== Dated this the 28th day of January 2008 JUDGMENT This writ petition is filed challenging the order of the Sub Court, Kattappana in I.A.No.940 of 2007 in I.A.No.641 of 2007 in O.S.No.37 of 2004. The prayer in the said application is to injunct the respondents in the application from making any further construction in the plaint schedule property till the disposal of the final decree application. The learned Sub Judge disposed of the application on the ground that the remedy for the party is to file a petition before this Court where the appeal is pending. It is true that an appeal is pending before this Court against the preliminary decree passed by the court. I am told that this court had only passed a stay against the passing of the final decree. It is rudimentary that when co- owners make constructions in the property and it detrimentally affects the rights of the parties, the court has to interfere with, if it is proved so. So, it is a matter which the Sub Judge himself can consider in the light of various decisions of this Court. The intended mischief is only a proceeding pending before the court below which may go to the root of the matter if WP(C) 3218/2008 -:2:- construction is completed. Therefore, I direct the court below to consider I.A.No.940 of 2007 afresh after hearing both sides and pass appropriate orders within one month from today. Writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-