IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 FAO.No. 65 of 2009() -------------------- I.A.404/02 IN AS.71/2005 of SUB COURT, TIRUR .................... APPELLANT/PETITIONER -------------------- KUNHIBAVA, S/O.MOIDEEN, KUTTIYATH HOUSE, CHERIYAMUNDAM, TIRUR TALUK, MALAPPURAM DISTRICT BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENTS/RESPONDENTS: --------------- 1. KAPPORATH KUNHIPOCKER, S/O.KADAR HAJI, IRINVAVOOR PO, TIRUR TALUK MALAPPURAM DISTRICT 2. KUNHU @ PATHUMMA, W/O.PALATHINGAL EANU, IRINVAVOOR PO, TIRUR TALUK MALAPPURAM DISTRICT 3. AMINUMMA, D/O.KUTTIYATH ALAVI HAJI, IRINVAVOOR PO, TIRUR TALUK MALAPPURAM DISTRICT THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO. 794/09 IN FAO 65/09 DISMISSED 26/2/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ F.A.O.NO. 65 OF 2009 ------------------------------------------ Dated 26th February 2009 JUDGMENT Learned Senior counsel submitted that learned Sub Judge disposed the application as if it is an application under Rule 2A of Order XXXIX of Code of Civil Procedure though it is an application filed under Rule 1 of Order XXXIX. Appeal is filed challenging the order in I.A.404/2002 in A.S.71/1995 on the file of Sub court, Tirur. Appellant is the first respondent in the first appeal. Suit was for injunction. Suit was for injunction. Suit was decreed. Plaintiff was permitted to construct building in plaint item No.1 and 2. The decree is challenged in the appeal. In the appeal I.A.404 of 2002 was filed for mandatory injunction alleging that construction is made against the decree. It was dismissed. It is the correctness of that order which is challenged in the appeal. 2. Appeal itself is pending before the Sub court from 1995 onwards. In such circumstances, I do not find it in the interest of justice to interfere with the impugned order. The question whether plaintiff is entitled to construct the building only as provided FAO 65/09 2 under the decree is to be decided in the appeal. It cannot be settled in the application. In such circumstances, interest of justice will be met, if a direction is given to the Sub Judge, Tirur to dispose A.S.71/1995 within a time frame untrammelled by any observation in the impugned order. F.A.O.65/2009 is disposed directing Sub Judge, Tirur to dispose A.S.71/1995 within 30 days from the date of receipt of a copy of this judgment. M.SASIDHARAN NAMBIAR, JUDGE. uj.