IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY , THE 26TH NOVEMBER, /5TH AGRAHAYANA 1932 OP(C).NO. 887 OF 2010(O) ------------------------------------- AS.250/2010 OF II ADDL. DISTRICT COURT, KOLLAM OS.214/1998 OF MUN-MAGI COURT, PARAVOOR .................... PETITIONERS: -------------------- 1. S.SANTHA VIJAYASIMHAN, W/O. LATE VIJAYASIMHAN, VALIYAVILA VEEDU, KURUMANDAL, PARAVOOR, KOLLAM. 2. SAINA GIREESH, W/O. GIREESH, DO. DO. DO. 3. V.V. HARISH, S/O. LATE VIJAYASIMHNAN, DO. DO. DO. 4. V.V. PRATHEESH, S/O. LATE VIJAYASIMHAN, DO. DO. DO. BY ADV. SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE. RESPONDENT(S): ------------------------- C.N. HARIHARAN, S/O. NEELAKANTAN, VAYALIL VEEDU, AKKOLIL CHERRY, KOOTTIKADA, MAYYANAD, KOLLAM PIN -691 303. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.887 of 2010 -------------------------------------- Dated this the 26th day of November, 2010. JUDGMENT Petitioners are defendants in O.S.No.214 of 1998 of the court of learned Munsiff-Magistrate, South Paravur and have suffered a decree for mandatory injunction for their eviction from the suit property and payment of fee to the respondent at the rate of Rs.500/- p.m. for use and occupation from 03.02.1997 onwards. Challenging that judgment and decree petitioners have filed A.S.No.250 of 2010 in the court of learned District Judge, Kollam. Ext.P3, application for stay of execution was also filed. Appeal and stay petition were made over to the court of learned Additional District Judge-II, Kollam. Grievance of petitioners is that since there was no sitting in that court for two months the appeal and stay petition are posted to 20.01.2011 and in the meantime pursuant to the order on Ext.P4, execution petition respondent has sought delivery of possession and executing court has passed Ext.P5, delivery notice directing petitioners to vacate the premises on 29.11.2010. Petitioners therefore pray that Ext.P5, delivery notice may be set aside and execution of the decree may be stayed until stay petition is disposed of by the learned Additional District Judge. 2. If there was no sitting in the court of learned Additional District Judge and there was no possibility of appeal and stay petition being taken up it is not as if petitioners had no remedy. Petitioners should have moved the OP(C) No.887/2010 2 learned District Judge to recall the appeal and sought appropriate relief on Ext.P3, application for stay which the petitioners have not so far done. Hence the request that until a new Judge takes charge in the Additional District Court, execution proceedings may wait cannot be accepted. However, to enable petitioners move the learned District Judge I am inclined to direct that delivery proceedings will stand adjourned to a day after a week from this day provided that the entire licence fee/damages as the case may be payable by petitioners under the decree till 01.12.2010 is deposited in the executing court on or before 30.11.2010. In case the said condition is not complied it will be open to the executing court to proceed with Ext.P5, delivery notice. Petition is disposed of as above. THOMAS P.JOSEPH, Judge. cks