IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 OP(C).NO. 2490 OF 2011(O) -------------------------------------- I.A. NO.619 OF 2011 IN AS.25/2011 OF PRINCIPAL SUB COURT, IRINJALAKUDA .................... PETITIONER: ------------------- SASIDHARAN, AGED 58, S/O.PUNNAKKATHARAYIL CHANDRAN, KAZHUVILANGU DESOM, PAPPINIVATTOM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): ------------------------- KOMALA, D/O.PUNNAKATHARAYIL DAMODHARAN, W/O THAIVALLIYIL SANKARANARAYANAN, KOOLIMUTTOM VILLAGE DESOM, KODUNGALLUR TALUK, PIN 680664. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C) NO.2490 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 A TRUE COPY OF THE JUDGMENT IN O.S. NO.493 OF 2006 DATED 11.10.2007 ON THE FILE OF THE MUNSIFF'S COURT, KODUNGALLUR. EXHIBIT P2 A TRUE COPY OF THE FINAL DECREE PASSED IN I.A. NO.2065 OF 2007 IN O.S. NO.493 OF 2006 DATED 14.9.2010 ON THE FILE OF THE MUNSIFF'S COURT, KODUNGALLUR. EXHIBIT P3 A TRUE COPY OF THE APPEAL MEMORANDUM IN A.S. NO.25 OF 201 BEFORE THE SUB COURT, IRINJALAKUDA DATED 31.1.2011. EXHIBIT P4 A TRUE COPY OF THE ORDER PASSED IN I.A. NO.619 OF 2011 IN A.S. NO.25 OF 2011 DATED 13.7.2011 ON THE FILE OF THE PRINCIPAL, SUB COURT, IRINJALAKUDA. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2490 of 2011 ==================================== Dated this the 01st day of August, 2011 J U D G M E N T Petitioner is the first defendant in O.S. No.493 of 2006 of the court of learned Munsiff, Kodungallur. Learned Munsiff passed a preliminary decree for partition between the petitioner and respondent. The preliminary decree was challenged in appeal but that ended a dismissal. That was followed by a final decree in the suit. Now the final decree is put to execution. At that stage petitioner challenged the final decree in A.S. No.25 of 2001 in the court of learned Sub Judge, Irinjalakuda and filed I.A. No.619 of 2011 for stay of execution. That application was opposed by the respondent. Respondent undertook that in case the appeal is allowed respondent is agreeable for re-delivery of the property. Learned Sub Judge dismissed I.A. No.619 of 2011. Exhibit P4, order is under challenge in this Original Petition. 2. Learned counsel for petitioner submits that petitioner has valid contentions including the manner in which the Advocate Commissioner has valued the property to be raised in the appellate court. Petitioner was not given any opportunity to adduce O.P(C) No.2490 of 2011 -: 2 :- evidence or file objection to the report of the Advocate Commissioner. 3. Learned counsel for respondent submits that apart from a plea regarding valuation, no evidence was adduced in spite of sufficient opportunity given for the same. 4. No doubt, respondent has undertaken that in case the appeal is allowed, she is prepared to re-deliver the property. It is also true that I.A. No.1191 of 2011 is filed by the petitioner before trial court to pass fresh preliminary decree between petitioner and supporting defendants. 5. A.S. No.25 of 2011 has already been admitted. It follows that the contentions raised by the petitioner are yet to be decided by the learned Sub Judge. If before that, the decree is executed it may cause some inconvenience and injury to the petitioner. I am inclined to direct that execution proceeding will stand in abeyance till the appeal is disposed of. 6. The suit is of the year, 2006. Learned Sub Judge has to dispose of A.S. No.25 of 2011 as expeditiously as possible. Resultantly, Original Petition is allowed in the following lines: O.P(C) No.2490 of 2011 -: 3 :- (i) Exhibit P4, order dismissing I.A. No.619 of 2011 in A.S. No.25 of 2011 of the court of learned Sub Judge, Irinjalakuda is set aside. (ii) I.A. No.619 of 2011 is allowed. Execution of the final decree in O.S. No.493 of 2006 of the court of learned Munsiff, Kodungallur is stayed until disposal of A.S. No.25 of 2011. (iii) Learned Principal Sub Judge, Irinjalakuda is directed to dispose of A.S. No.25 of 2011 as early as possible at any rate within a period of 2 (two) months from the date of receipt of a copy of this judgment. THOMAS P. JOSEPH, JUDGE. AMG