IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 WP(C).No. 35652 of 2007(T) -------------------------- AGAINST THE ORDER DATED 08/08/2001 IN IA 787/1992 IN OS.149/1986 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER: ------------ J.JERVAS, LILLY COTTAGE, VADAKKUMBHAGOM, KOLLAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: ------------- 1. BRIJIT ANTONY @ LATHA ANTONY, SRIMANDIRAM, VADAKKUMBHAGOM VILLAGE, KOLLAM-691584. 2. ALIKUTTY THOMAS, LILLY COTTAGE, VADAKKUMBHAGOM WARD, KOLLAM-691584. 3. NIRMALA DANIEL, NIRMAL BHAVAN, OLAYIL, PALACE WARD, KOLLAM-691586. 4. MARY MAGDALANA, LILLY COTTAGE, VADAKKUMBHAGOM, KOLLAM. 5. LEELA SAMUEL, CELIN COTTAGE, DOOR NO.144, ANWARPETTA, KUNNOOR, TAMILNADU. 6. THRESSIAMMA PHILIP, VADAKKUNNEL, KARUVATTA, ADOOR-691523. 7. REBEKKA PAUL, KANDATHIL VEEDU, VADAKKUMBHAGOM-691584. 8. J.ROMANCE, LILLTY COTTAGE, VADAKKUMBHAGOM, KOLLAM. 9. ROSLEY JERVAS, -DO- -DO-. 10. THANKAMMA, THANKAMMA MANADIRAM, OLAYIL, PALACE WARD, KOLLAM-691586. R1 BY SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.SREEKUMAR R3 BY SRI.C.V.ANTONY KOTHAMANGALAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 35652/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE PRELIMINARY JUDGMENT IN O.S. NO.149/96 BEFORE THE PRINCIPAL SUB COURT KOLLAM DT. 21.12.91 EXT.P2. COPY OF THE FINAL JUDGMENT IN IA NO.787/92 IN OS NO.149/86 BEFORE THE PRINCIPAL SUB COURT, KOLLAM DT. 8.8.01 EXT.P3. COPY OF THE APPEAL MEMORANDUM DT. NIL IN AS NO.31/03 BEFORE THE DISTRICT COURT, KOLLAM EXT.P3(a). COPY OF THE APPLICATION SEEKING A STAY DT. NIL IN IA NO.238/03 IN AS NO.31/03 BEFORE THE DISTRICT COURT KOLLAM EXT.P4. COPY OF THE INTERIM ORDER DT. 11.10.04 IN IA NO.238/03 IN AS NO.31/03 BEFORE THE DISTRICT COURT KOLLAM EXT.P4(a). COPY OF THE ORDER DT. 3.1.05 IN IA NO.238/03 IN IA NO.1224/04 IN AS NO.31/03 BEFORE THE DISTRICT COURT KOLLAM EXT.P5. COPY OF THE REPORT DT. 15.1.96 OS NO.149/86 BEFORE THE SUB COURT KOLLAM EXT.P6. COPY OF THE PLAN EXT.P7. COPY OF THE APPLICATION IN EA NO.156/04 IN EP NO.34/03 IN OS NO.149/86 BEFORE THE SUB COURT KOLLAM DT. 10.3.04 EXT.P8. COPY OF THE OBJECTION DT. 15.5.04 IN EA NO.156/04 IN EP NO.34/03 IN O.S. 149/86 BEFORE THE SUB COURT KOLLAM DT. 10.3.04 EXT.P9. COPY OF THE ORDER DT. 13.11.07 EA NO.156/04 IN EP NO.34/03 IN OS NO.149/86 BEFORE THE SUB COURT KOLLAM. RESPONDENT'S EXHIBITS EXT.R1(a). COPY OF THE COMMISSION REPORT AND PLAN EXT.R1(b). COPY OF THE JUDGMENT IN C.R.P 1443/04 DT. 26.7.07 EXT.R3(1). COPY OF THE JUDGMENT IN C.R.P 1443/04 DT. 26.7.07 OF HON'BLE HIGH COURT OF KERALA /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 35652 OF 2007 --------------------- Dated this the 23rd day of January, 2008 JUDGMENT This writ petition is preferred to quash Ext.P9 order passed by the Principal Subordinate Judge, Kollam, in EA 156/04 in EP 34/03 in OS 149/86. The 28th defendant is the petitioner before the court, who had been allotted item No.1 of the property shown in Ext.P6 plan. The contention of the petitioner is that as per the plan submitted by the Commissioner, the pathway mentioned as ‘8’ is the access to item No.1. There are trees standing in the property as well as a projection of the shed constructed by the 7th defendant, which causes absolute inconvenience and obstruction for passage and therefore he had requested the court below for appointing a Commissioner and execute the decree so as to get clear passage to enter his property as item No.1. 2. A perusal of the records and on hearing the submissions of the learned counsel appearing for both sides, it is clear that an appeal is pending before the 2nd Additional District Judge, Kollam as AS 31/03 against the final judgment/decree in IA 787/92 in OS 149/86. It is also seen that on 11.10.04, the 2nd Additional District Judge, Kollam has passed an order whereby he had stayed the proceedings before the lower court in IA 787/92 for one month. Subsequently, by another order dated 3.1.05, the WPC NO 35652/07 2 learned judge extended the stay till disposal of the appeal. Now, what is contended before me is that the stay is only with respect to the proceedings in the IA 787/92. So it has to be stated that there is no stay of the execution of decree and therefore the 28th defendant is at liberty to file an application for implementation of the decree passed by the court. It is true that neither the stay application nor the stay order has been correctly worded and does not convey the meaning, which it deserves. When IA 787/92 is finally disposed of by passing a final decree/judgment, there remains nothing to be stayed. Therefore the import of the prayer is to stay further action in pursuance to the order in IA 787/92. It can only be understood in the ordinarily sense in that way and not otherwise. Whatever it may be, much prior to the granting of stay by the court on 11.10.04, as early as on 16.2.04 the 28th defendant had obtained delivery of the property of item No.1. A perusal of the plan, which is appended as Ext.P6, would show that it is only through plot ‘8’, which is to be made as a clear pathway, there can be entry to item No.1. So, in pursuance to the decree if a person is put in possession of the property then necessarily there must be some arrangement to see that he is also having ingress and aggress to the said property. This is a matter, which requires consideration at the hands of the District Court, where the appeal is pending. 3. Therefore I direct the 2nd Additional District Judge, Kollam where AS 31/03 is pending, if necessary to issue a Commissioner and find out WPC NO 35652/07 3 how the obstruction to the passage can be removed without detrimentally cutting the trees standing in the property so that at least a passage for walking can be given to the 28th defendant for his ingress and aggress to item No.1 shown in Ext.P6 plan. I direct the 28th defendant to move an appropriate application before the District court for getting the relief which he wants by way of a passage. Since the matter is of the year 1986 and the dispute is only with respect to the allotment of shares, it is desirable that the District court also disposes of the matter as early as possible, if service is complete, at any rate, before the court closes for summer holidays. Therefore I dispose of the writ petition modifying the order of the executing court but with liberty to the 28th defendant to move the District court for appropriate reliefs. It may not be taken that I have expressed any opinion as on the merits of the case because it is for that court to decide the case on its facts and circumstances. M.N.KRISHNAN, JUDGE vps WPC NO 35652/07 4