IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 WP(C).No. 8457 of 2010(O) ------------------------------------ AS.90/2009 of SUB COURT, PAYYANNUR OS.67/2008 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): ------------------------ KAMBRATH VANAJA, AGED 37 YEARS, W/O.CHOOVVATTA KUNHIVEETTIL DINESAN, VELLUR AMSOM, ANNUR DESOM, P.O.ANNUR, KANNUR DISTRICT. BY ADV. MR.M.V.AMARESAN RESPONDENT(S): ---------------------------- KAKKALATH RAGHAVAN, AGED 70 YEARS, S/O.PADINJARE PURAYIL KUNHAMBU AND KAKKALATH CHEMMARATHI, KOROM AMSOM DESOM, P.O.CHALAKKODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- WP(C) No.8457 of 2010-O ------------------------------------- Dated 19th March 2010 Judgment The petitioner has approached this Court, challenging Ext.P5 order passed by the Sub Court, Payyannur in IA No.1578/09 in AS No.90/09. 2. The petitioner filed an appeal as AS No.90/09 before the Sub Court, Payyannur, aggrieved by the Judgment and decree in OS No.67/08 passed by the Munsiff's Court, Payyannur. He also moved IA No.1578/09 along with the appeal, seeking interim stay of the execution of the decree. The lower Appellate Court, after considering the matter and the materials before it, dismissed the said IA by Ext.P5 order. The said order is assailed in this Petition. 3. The learned counsel for the petitioner relied on the decision of the apex court in Atma Ram Properties v. Federal Motors (2005(1) SCC 705) and WPC 8457/10 2 contended that it would have been only fair and proper on the part of the lower Appellate Court, at least to order status quo in the matter. It is also pointed out that if the appeal is ultimately allowed, it may not be possible to restore the properties to the original position. 4. The decision relied on by the learned counsel for the petitioner has to be read in the context of that case and it is not applicable to the facts of the case on hand. 5. It is significant to notice that the defendant did not care to adduce any evidence in the suit and it was after considering the evidence adduced by the plaintiff, that the decree was passed. The Lower Appellate Court, which has seized of the matter, has chosen to exercise its discretion in a particular manner. The said exercise of discretion does not seem to be perverse or irregular. No grounds are made out to WPC 8457/10 3 interfere with the order passed by the lower Appellate Court. This Writ Petition is devoid of any merits. However, the Petition is disposed of directing the Sub Court, Payyannur to dispose of the appeal filed by the petitioner as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this Judgment. P.BHAVADASAN, JUDGE sta WPC 8457/10 4