IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WP(C).No. 23575 of 2008(F) -------------------------- AGAINST THE ORDER IN EP 628/2007 IN OS.320/1993 of PRL.MUNSIFF COURT, ERNAKULAM .................... PETITIONERS: -------------- 1. ANNIE VINCENT, AGED ABOUT 68 YEARS, W/O. VICENT, RESIDING AT ILLIPARAMBIL HOUSE POTTAKUZHY, KALOOR, ERNAKULAM DISTRICT 2. P.A.PHILOMINA GEORGE, D/O. LATE ANTONY, AGED 52, METHASSERY HOUSE, HOUSE NO, 29/2311, POONITHURA P.O., CHAMBAKKARA,KOCHI 682 019. 3. P.A.MATHEW,S/O. LATE P.M. ANTONY,AGED 48, PULLIPARAMBIL HOUSE, MARADU P.O.,CHAMBAKKARA. 4. P.A.FRANCIS SABU, S/O. LATE P.M. ANTONY, AGED 38, PULIPARAMBIL HOUSE,HOUSE NO. 1/60, MARADU P.O.,MARADU. 5. P.A.BENO, S/O. LATE P.M. ANTONY, AGED 50 YEARS, C/O.ARAVINDAN,PONNURUNNY, VYTTILA P.O,COCHIN-19 6. ANNAKUTTY, AGED ABOUT 70 YEARS, W/O.LATE P.M.JOSEPH, RESIDING AT PULIPARAMBIL HOUSE, THAIKOODAM, VYTTILA P.O, POONITHURA VILLAGE,KANAYANNUR TALUK. 7. P.J.MATHEW, AGED ABOUT 45 YEARS S/O. LATE P.M.JOSEPH, RESIDING AT AT PULIPARAMBIL HOUSE, THAIKOODAM, VYTTILA P.O, POONITHURA VILLAGE,KANAYANNUR TALUK. 8. P.J.THOMAS, AGED ABOUT 43 YEARS S/O. LATE P.M.JOSEPH, RESIDING AT AT PULIPARAMBIL HOUSE, THAIKOODAM, VYTTILA P.O, POONITHURA VILLAGE,KANAYANNUR TALUK. (..2/) (2) 9. P.J.VARGHESE, AGED ABOUT 38 YEARS, S/O. LATE P.M.JOSEPH, RESIDING AT PULIPARAMBIL HOUSE, THAIKOODAM, VYTTILA P.O, POONITHURA VILLAGE,KANAYANNUR TALUK. 10. PHILOMINA ANTONY, AGED ABOUT 40 YEARS D/O. P.M.JOSEPH, W/O.ANTONY, RESIDING AT AKYATH HOUSE, THYKOODAM, VYTTILA. BY ADV. SRI.BINDU SREEKUMAR RESPONDENTS: ------------- 1. JOSEPH.T.C., AGED 50 YEARS, THOTTAKKATH HOUSE, CHENNUR, KOTHADU P.O. 2. SR.JISHA, AGED 24, D/O.ELIZABATH P.A. SCHOOL OF NURSING MARADU, TRIPUNITHURA. 3. MARY MARGRATE, AGED 22 YEARS, D/O.ELEZABATH,THOTTAKKATH HOUSE, CHENNUR, KOTHADU P.O. 4. FRANCIS JOSEPH, AGED 21 YEARS, S/O. ELIZABATH,THOTTAKKATH HOUSE, CHENNUR, KOTHADU P.O. 5. MARY, AGED 45 YEARS, D/O.REASY, NADUVILAMANAKKAL HOUSE, S.CHITTOOR P.O. 6. SHEELA JAMES, AGED 38 YEARS, W/O.LATE JAMES, KANNIPARAMBIL HOUSE, VALLARPADOM.P.O. 7. SEBASTINE JOSEPH, AGED 17, S/O.LATE JAMES, KANNIPARAMBIL HOUSE, VALLARPADOM P.O, REPRESENTED BY GUARDIAN MOTHER SHEELA JAMES. 8. GIYA TREESA, AGED 16, D/O.LATE JAMES, KANNIPARAMBIL HOUSE, VALLARPADOM P.O. REPRESENTED BY GUARDIAN MOTHER SHEELA JAMES. 9. GEORGE MATHEW SABU, AGED 40, S/O.LATE REASY, KANNIPARAMBIL HOUSE, VALLARPADOM P.O.,COCHI-31 10. JOSEPH MARTIN @ ROY, AGED 38 YEARS, S/O.LATE REESY, DO..DO... (..3/-) (3) 11. P.F.XAVIER, AGED 50 YEARS, S/O.LATE MARY, RESIDING AT PALLIKKAVEETTIL, ST.MARTION ROAD, MARADU NORTH, KOCHI-4. 12. P.F.GEORGE, AGED 55 YEARS, S/O.LAE MARY, KOTTARAM VEEDU, VADUTHA P.O. KOCHI-23. 13. PHILOMINA, AGED 65 YEARS, D/O.LATE MARY RESIDING AT PUDUSSERY HOUSE, FRANCIS MANUAL ROAD, HOUSE NO.119 KALOOR, KATHRUKKADAVU. 14. ELIZABETH,AGED 62 YEARS, D/O.LATE MARY, RESIDING AT NELKUNNASSRY HOUSE, E.S.I.ROAD, ERNAKULAM, KOCHI-18. 15. MARIYA JUSTINA @ RANSY,AGED 48 YEARS, D/O.LATE MARY, RESIDING AT ARAKKAPARAMBIL HOUSE, VALLARPADAM.P.O.,KOCHI-31 16. ELEZEBATH AGED 72 YEARS, W/O.ANTONY, RESIDING AT AZHEPARAMBIL HOUSE, BASIN ROAD, ERNAKULAM VILLAGE, KANAYANNUR TALUK. 17. JOSE JONAS @ JOHNY, AGED 49, S/O.LATE PHILOMINA, ST.MARY'S CHAPPEL ROAD THOPPUMPADY, KOCHI-5. 18. JOSEPHINE PHILOMINA @ SOPHY, D/O.LATE PHILOMINA, AGED 47 YEARS, W/O.C.S.JOSEPH, CHAMMINIKODATH, KOLLASSERY ROAD, KONAM, PALLURUTHY, KOCHI-6. 19. JAMES, AGED 45 YEARS, S/O.LATE PHILOMINA, KOLLANASSERY HOUSE, ST.MARY'S CHAPPEL ROAD, THOPPUMPPADY. 20. MATHEWS @ SAJAN, S/O.LATE PHILOMINA,AGED 43 YEARS, KOLLANASSERY HOUSE, ST.MARY'S CHAPPEL ROAD, THOPPUMPPADY. 21. JESSY MARY, AGED 41 YEARS, D/O. LATE PHILOMINA AND W/O. K.J.THOMAS, RESIDING AT KELOTH HOUSE, KONAM, PALLURUTHY. 22. CHINNAMMA XAVIER, W/O.LATE XAVIER, PULLIPARAMBIL HOUSE, TAYKOODAM, VYTTILA P.O. 23. PHILS ANTONY, S/O.LATE P.M.XAVIER ARAKKATHARA HOUSE, CHATHAMMA, PANANGAD. (...4/) (4) 24. GEORGE, S/O. LATE XAVIER, PULLIPARAMBIL HOUSE,TAYKOODAM, VYTTILA P.O. 25. JAME JOSY, D/O.LATE P.M.XAVIER CHETTINGAL HOUSE, OPP.PARISH HALL PALLANADA, PALARIVATTOM, KOCHI-25 26. FR.JOHN PULIPARAMBIL, S/O.LATE P.M.XAVIER, ASHIR BHAVAN, KACHERIPADY ERNAKULAM 27. V.R.JAMES, H/O.LATE JESSY JAMES VALIYAPARAMBIL HOUSE, JANATHA ROAD, VYTTILA P.O. 28. NIMMY JAMES, D/O. JESSY JAMES, VALIYAPARAMBIL HOUSE, JANATHA ROAD,VYTTILA P.O. REPRESENTED BY HER FATHER AND GUARDIAN V.R.JAMES VALIYAPARAMBIL HOUSE, JANATHA ROAD,VYTTILA P.O. 29. JIJO JOSEPH, S/O. LATE JESSY JAMES, VALIYAPARAMBIL HOUSE, JANATHA ROAD,VYTTILA P.O. RERPRESENTED BY HER FATHER AND GUARDIAN V.R.JAMES VALIYAPARAMBIL HOUSE, JANATHA ROAD,VYTTILA P.O. 30. JULE MARTIN,D/O. LATE P.M.XAVIER, CHENNAPPALLY HOUSE, MUPPATHADOM, ALUVA. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 23575 OF 2008 ------------------------------------------ Dated this the 5th day of August, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India for a direction to District Court, Ernakulam to issue carbon copy of the order passed in I.A.5523 of 2008 and for a direction to stay the execution proceedings till the disposal of I.A.5268 of 2008 and for a direction to District Court, Ernakulam to allow the application filed by the petitioners to effect service to the respondents. 2. Learned counsel appearing for petitioners was heard. 3. Petitioners are the appellants in A.S.169 of 2008. Appeal was filed along with an application to condone the delay of more than 1000 days in filing the appeal. Petitioners filed I.A.5268 of 2008, an application to stay further proceedings in E.P. 628 of 2007 in execution of the final decree challenged in A.S.169 of 2008. The case of the petitioners is that I.A.5523 of 2008 was filed for serving notice to the other respondents through special messenger and it was dismissed by the learned WP(C)23575/08 2 District Judge on 30.7.2008 and a carbon copy application was filed immediately and petitioners did not so far get the carbon copy. A direction is sought to issue the carbon copy. If the petitioners have applied for carbon copy of the order passed in I.A.5523 of 2008 and the carbon copy is not so far furnished, District Court, Ernakulam is directed to issue carbon copy without further delay at any rate within five days from the date of receipt of a copy of this judgment. 4. The other relief of direction to the District Court to allow the application filed by the petitioners to effect proper service cannot be granted in this writ petition, as the very purpose of seeking carbon copy of the order in I.A. 5523 of 2008 is to challenge that order. Then the question is whether the delivery ordered in the execution petition is to be stayed till an order is passed on I.A. 5268 of 2008. When the appeal was filed after delay of more than 1000 days, without contending the delay First Appellate Court cannot grant an order of stay of execution of the decree. The question is whether it is to be granted by this Court invoking the extraordinary powers under Article 227 of Constitution of India. When petitioners are not WP(C)23575/08 3 entitled to an order of stay before condoning the inordinate delay, I do not find it is proper for this Court to grant an order of stay circumventing that provision. Writ petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-