IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
Wednesday, the 27th day of July 2022 / 5th Sravana, 1944
IA.NO.1/2020 IN RSA NO. 795 OF 2017
OS 2024/2009 OF PRINCIPAL MUNSIFF COURT,THIRUVANANTHAPURAM
AS 77/2013 OF III ADDITIONAL DISTRICT COURT,THIRUVANANTHAPURAM
PETITIONERS/PETITIONERS:
1. HELLEN STELLAS, AGED 60, W/O.STELLAS, THAIVILAKOM PURAYIDOM, ATTIPRA,
THIRUVANANTHAPURAM.
2. STELLAS, AGED 62,THAIVILAKOM PURAYIDOM,ATTIPRA, THIRUVANANTHAPURAM.
RESPONDENT/RESPONDENT:
BLESSY, AGED 42, D/O.METTY GOMEZ, THAIVILAKOM PURAYIDOM, ATTIPRA,
THIRUVANANTHAPURAM.
Application praying that in the circumstances stated in the affidavit filed therewith the High
Court be pleased to stay the operation of execution petition EP.325 of 2018 in OS.2024 of 2009 before
the Principal Munsiff Court,Thiruvananthapuram pending disposal of the above Regular Second
Appeal.
This Application coming on for orders upon perusing the application and the affidavit filed in
support thereof, and upon hearing the arguments of M/S.SAJU J.PANICKER, T.R.RAJAN, Advocates for
the petitioners and of SRI.R.SUNIL KUMAR, SMT.A.SALINI LAL, Advocates for the respondent, the
court passed the following:
M.R.ANITHA, J
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I.A.No.01 of 2020
in
R.S.A.No.795 of 2017
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Dated this the 27th day of July, 2022
ORDER
Petition filed to stay the operation of the Execution Petition No.325/2018 in O.S.No.2024/2019 on the file of Principal Munsiff's Court, Thiruvananthapuram. The suit was one for declaration and injunction and the trial court dismissed the suit and the first appellate court decreed the suit finding that the appellant has right of easement of necessity of C schedule pathway and the defendants and their men are restrained from causing any disturbance to the peaceful possession and enjoyment of C schedule property as pathway leading to plaint A schedule property and by way of permanent prohibitory injunction and directing the defendants to remove the flower pots and other obstruction in C schedule pathway by way of mandatory injunction.
I.A.No.01 of 2020 in R.S.A.No.795 of 2017 2
2. According to the learned counsel for the petitioner, this is a case in which the trial court dismissed the suit finding that there is no severance of tenaments and hence the claim for easement of necessity will not stand and the first appellate court reversed the judgment found in favour of the plaintiff and under the guise of the judgment and decree passed the plaintiff is attempting to cut and remove trees standing in the alleged way and E.P.No.325/2018 filed before the Principal Munsiff's Court, Thiruvananthapuram for execution of the decree and hence he seeks for staying the further proceedings in E.P.No.325/2018.
3. Learned counsel for the respondents filed counter affidavit refuting the allegations in the petition and he would contend that the physically challenged daughter of the respondent is not in a position to move out due to the obstruction caused by the petitioners in the pathway, which, according to her, is the only way leading to plaint A schedule property. So, he vehemently objects in passing any order.
I.A.No.01 of 2020 in R.S.A.No.795 of 2017 3
4. At the time of hearing, learned counsel for the petitioners would agree that they will remove the flower pots kept in the disputed way but under the guise of decree, cutting and removal of valuable trees standing in the alleged C schedule way has to be stayed.
5. Since appeal has already been admitted and divergent views have already been taken by the two courts with respect to right of way over plaint C schedule property, the undertaking made by the learned counsel for the petitioners that they would remove the flower pots is recorded and cutting and removal of trees in the C schedule is stayed. Petition disposed off accordingly.
Sd/-
M.R.ANITHA, JUDGE jsr 27-07-2022 /True Copy/ Assistant Registrar