IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 27158 of 2009(O) -------------------------- AS.130/2009 of SUB COURT,NEYYATTINKARA OS.551/1999 of I ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): --------------- THE SECRETARY, PERUMKADAVILA GRAMA PANCHAYAT, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): --------------- 1. JOSHWA NADAR RAGHAVAN NADAR VELLIKKUZHI VADAKE VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. RAGHAVAN NADAR, VELLIKKUZHI VADAKKE VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 3. VELAYUDHAN NADAR KUMARU NADAR, CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, THIRUVANANTHPAURAM DISTRICT. 4. ANNAMMA, W/O. VELAYUDHAN NADAR KUMARU NADAR, CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 5. JOSEPH NADAR VARGHESE, CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 6. MUTHU SWAMI CHRISTUDAS, PUTHUVAL PUTHEN VEEDU ALATHOOR WARD, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE,THIRUVANANTHAPURAM DISTRICT. WPC.27158/09 7. BHANU NADAR FRANKLI ALIAS SAJJU, CHARUMKUZHI PUTHEN VEEDU,MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 8. LAZAR NADAR KUTTAPPAN CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 9. SUKUMARAN JOHNY,CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, THIRUVANANTHAPURAM DISTRICT ADV. SRI.R.S.KALKURA FOR R1,2 &5 SRI.M.S.KALESH FOR R1,2 & 5 SRI.HARISH GOPINATH FOR R1,2 & 5 SRI.V.VINAY MENON FOR R1,2 & 5 SRI.M.AJAY (IRUMPANAM) FOR R1,2 & 5 SRI.R.GOPAN FOR R6,7 & 9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.27158/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF E.A.NO.783/2008 IN E.P.NO.97/2008 IN O.S.NO.551/1999 BEFORE THE COURT OF THE FIRST ADDITIONAL MUNSIFF, NEYYATTINKARA. EXT.P2: COPY OF THE ORDER DATED 24.2.2009 OF THE COURT OF THE FIRST ADDITIONAL MUNSIFF, NEYYATTINKARA IN E.A.NO.783/2008 IN E.P.97/2008 IN O.S.551/1999. EXT.P3: COPY OF APPEAL MEMORANDUM IN A.S.130/2009 BEFORE THE SUB COURT, NEYYATTINKARA. EXT.P4: COPY OF I.A.NO.1401 OF 2009 IN A.S.130/2009 BEFORE THE SUB COURT, NEYYATTINKARA. EXT.P5: COPY OF I.A.NO.1402 OF 2009 IN A.S.130/2009 BEFORE THE SUB COURT, NEYYATTINKARA. EXT.P6: COPY OF THE E.A.NO.621/2009 IN E.P.NO.97/2008 IN O.S.551/1999 BEFORE THE OCURT OF THE FIRST ADDITIONAL MUNSIFF, NEYYATTINKARA. EXT.P7: COPY OF THE ORDER DATED 27.8.2009 OF THE COURT OF THE FIRST ADDITIONAL MUNSIFF, NEYYATTINKARA, IN E.A.NO.621/2009 IN E.P.NO.97/2008 IN O.S.NO.551/1999. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.27158 OF 2009 (O) ----------------------------------- Dated this the 16th day of October, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to set aside Ext.P7 order. ii. to allow Ext.P6 petition. iii. to direct the Court of the Ist Additional Munsiff, Neyyattinkara to stay all further proceedings in E.P.No.97 of 2008 in O.S.No.551 of 1999, pending consideration of Ext.P4 stay petition by the Sub Court, Neyyattinkara. iv. to direct the Sub Court, Neyyattinkara, to consider and pass order in Exts.P4 and P5 petitions as expeditiously as possible, at any rate within a time frame to be fixed by this Honourable Court. 2. Petitioner, a local authority, filed a petition setting forth an obstruction to the decree passed in O.S.No.551 of WPC.27158/09 2 1999 before the Ist Additional Munsiff Court, Neyyattinkara. A decree was passed declaring the title, possession, putting up of boundary and for damages, in favour of respondents 1 to 4 in the above suit and the predecessor of the 5th respondent, against respondents 6 to 9 in the writ petition. Admittedly, petitioner, the local authority, was not a party in the above suit. Trespassing upon the suit property, defendants 6 to 8 carved out a way was the grievance canvassed by the petitioner to institute the suit for the reliefs aforementioned in which, after trial, a decree was granted in his favour. At the stage when execution of the decree proceeded negativing the objections canvassed by respondents 6 to 9 to the executability of the decree, the local authority appeared and moved an application contending that it has tenable objections to the decree as the land through which the road had been formed has vested with the Panchayat. The claim raised by the petitioner after enquiry was negatived by the execution court by Ext.P2 order. Petitioner, a local authority, preferred an appeal against Ext.P2 order with a petition to condone delay before the Sub Court, Neyyattinkara. Writ petition has WPC.27158/09 3 been filed seeking for keeping in abeyance the execution proceedings till consideration of the delay petition moved in the appeal and also the stay petition, once the delay is condoned. 3. Notice being given, respondents 1, 2 and 5 have entered appearance. Service has been completed on other respondents as well. 4. I heard the counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances presented, I find that an expeditious consideration and disposal of the delay petition filed (Ext.P5) by the petitioner, and if delay is condoned, then the stay petition (Ext.P4) moved in the appeal preferred by the petitioner before the Sub Court as A.S.No.130 of 2009 is essential for advancing the ends of justice. The learned counsel for the petitioner submits that service as against the respondents in the appeal is complete. The respondents 1 to 5, if they have not earlier entered appearance in the appeal, WPC.27158/09 4 shall appear within one week from the date of this judgment, and whether or not they appear within such period, the learned Sub Judge is directed to hear and dispose of the delay petition (Ext.P5) moved by the petitioner, local authority, within a period of three weeks after the expiry of the aforesaid one week already fixed. In case, the delay in preferring the appeal is condoned subject to terms or otherwise, the court below shall dispose of the stay petition within a further period of three weeks. The execution court is directed to keep in abeyance further execution proceedings in E.P.No.97 of 2008 in O.S.No.551 of 1999 for a period of two months from the date of this judgment, and thereafter to proceed with the matter subject to the orders passed by the Sub court in Exts.P4 and P5 applications of the petitioner in A.S.No.130 of 2009. I make it clear that the Sub Court shall consider and dispose the applications Exts.P4 and P5, on its merit untrammelled by any of the observations made in this judgment. Similarly, the execution court shall not consider or interpret any of the observations of this Court as stultifying the execution of the decree passed in favour of respondents 1 WPC.27158/09 5 to 5, which, it is submitted, has become final and conclusive as confirmed in first and second appeals. In case, the delay is condoned, whether or not stay is granted, which no doubt, has to be decided on its merits, the appellate court is directed to give top priority to the hearing of the appeal and dispose it as expeditiously as possible. Subject to the above directions, the writ petition is closed. Handover a copy of the judgment to the counsel on both sides on usual terms and send a copy of the judgment to the Sub Court, Neyyattinkara and Munsiff Court, Neyyattinkara forthwith. S.S.SATHEESACHANDRAN JUDGE prp