Dayana vs Sini
2021 Latest Caselaw 3778 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR. JUSTICE SATHISH NINAN

    TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                     OP(C).No.1969 OF 2020

  I.A.NO.518/2019 IN AS 48/2019 OF SUB COURT, KARUNAGAPPALLY

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PETITIONER/PETITIONER IN I.A/APPELLANT:

             DAYANA
             AGED 47 YEARS
             D/O. GRACE, GRACE VILLA, MANAKKARA MURI,
             SASTHAMCOTTA VILLAGE, KUNNATHOOR TALUK, KOLLAM
             DISTRICT, PIN - 690 521.

             BY ADV. SRI.P.V.DILEEP

RESPONDENTS/RESPONDENT IN I.A/RESPONDENT:

             SINI
             AGED 36 YEARS
             D/O. LEELA, WARD NO.33, HOUSE NO.320,
             ATHIKKATTU PADINJATTATHIL HOUSE,
             VALATHUNGAL CHERRY, ERAVIPURAM,
             KOLLAM DISTRICT, PIN - 691 011.


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                    SATHISH NINAN, J.
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                O. P. (C) No.1969 of 2020
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         Dated this the 2nd day of February, 2021

                                JUDGMENT

The petition for stay of execution of decree

filed in the first appeal was ordered as follows:-

"In the result, petition is allowed and all the further proceedings based on the judgment and decree of the Munsiff-Magistrate Court, Sasthamcotta in OS No.151/2013, in EP No.32/2019, is stayed till the disposal of the appeal, on condition of the appellant/petitioner furnishing security for Rs.5,00,000/- (Rupees five lakh) before the Munsiff Court, Sasthamcotta within 15 days from the date of this order, by way of bank guarantee and if the said security amount is not furnished within the above said time, this stay petition shall stands dismissed, without costs."

2. The decree is one for specific performance

of an agreement for sale. I do not consider it

necessary to require the appellant-defendant to

make the deposit or to furnish security as is

ordered. The interest of the respondent-plaintiff O. P. (C) No.1969 of 2020

could be safeguarded by directing the petitioner-

appellant in the first appeal, not to alienate or

to create any encumbrance over the plaint schedule

property.

In the result, this original petition is

allowed. The order impugned is set aside. Execution

of decree in OS 151/2013 of the Munsiff-Magistrate

Court, Sasthamcotta will stand stayed subject to

the condition that the petitioner-appellant in As

48/2019 shall not encumber or alienate the property

in OS 151/2013 pending disposal of the appeal. The

petitioner-appellant shall file an affidavit

undertaking the above. The affidavit shall be filed

within a period of ten days from today before the

first appellate court. On the failure to comply

with the same, the application IA 518/2019 will

stand dismissed.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge OP(C).No.1969 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPEAL NO.A.S.48/2019 FILED BY THE PETITIONER BEFORE THE SUB COURT, KARUNAGAPPALLY, DATED 11.10.2019.

EXHIBIT P2 TRUE COPY OF THE DECREE IN O.S.NO.151/2013 OF THE HONOURABLE MUNSIFFS COURT, SASTHAMCOTTA DATED 10.04.2019.

EXHIBIT P3 TRUE COPY OF THE PETITION AND AFFIDAVIT IN I.A.NO.518/2019 IN A.S.NO.48/2019 OF THE SUB COURT, KARUNAGAPPALLY.

EXHIBIT P4 TRUE COPY OF THE ORDER IN I.A.NO.518/2019 IN A.S.NO.48/2019 OF THE SUB COURT, KARUNAGAPPALLY DATED 07.12.2020.

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