Preetha vs P.S.George
2021 Latest Caselaw 736 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SATHISH NINAN

     FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                         OP(C).No.62 OF 2021

          AGAINST E.P No.47/2018 IN OS 489/2003 OF MUNSIFF
                        COURT,VADAKKANCHERRY


PETITIONERS:

      1        PREETHA, AGED 40 YEARS
               D/O.KRISHNANKUTTY NAIR, KALATHIL, THEKKE KONDAZHY
               DESOM, KONDAZHI VILLAGE, TALAPPILLY TALUK, KONDAZHY
               P.O., THRISSUR DISTRICT-680 671.

      2        RATHNAM,AGED 68 YEARS
               W/O.KRISHNANKUTTY NAIR, KALATHIL, THEKKE KONDAZHY
               DESOM, KONDAZHI VILLAGE, TALAPPILLY TALUK, KONDAZHY
               P.O., THRISSUR DISTRICT-680 671.

               BY ADV. SRI.G.SREEKUMAR (CHELUR)

RESPONDENTS:

      1        P.S.GEORGE, AGED 59 YEARS
               S/O.PUTHANVEETIL SIMON, THEKKE KONDAZHY DESOM,
               KONDAZHI VILLAGE, TALAPPILLY TALUK, THRISSUR
               DISTRICT-680 671.

      2        BABY @ BALAN, AGED 51 YEARS
               PAPPIYAMTHOTTIL THOMAS @ AYYAPPAN, THEKKE KONDAZHY
               DESOM, KONDAZHI VILLAGE, TALAPPILLY TALUK, THRISSUR
               DISTRICT-680 671.


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.62 OF 2021

                                        2




                                    JUDGMENT

Challenging the decree and judgment in O.S

No.489 of 2003 of the Munsiff Court, Wadakkancherry,

R.S.A No.877 of 2017 is pending before this court.

The same was filed by the predecessor in interest of

the petitioners. In R.S.A No.877 of 2017 there is a

delay of 20 days in filing the appeal. Pending

consideration of the delay condonation application,

the predecessor in interest of the petitioner

expired. Applications for impleading, setting aside

abatement and condonation of delay are pending

consideration in the second appeal. While so, the

decree, which is one for recovery of possession is

being executed, is the grievance of the petitioners.

2. The petitioners have filed Ext P2 application

before the execution court seeking stay of further

proceedings in execution, pointing out the pendency OP(C).No.62 OF 2021

of R.S A No.877 of 2017 with delay. The learned

counsel appearing for the petitioners submits that

Ext P2 application though styled as one under Section

151, is to be construed as one under Order 21 Rule 26

CPC and that in view of the decision reported in

1999(3) KLT 538, the application is liable to be

granted. I do not propose to go into the merits of

the submissions. It would be sufficient if the

application is disposed of without delay.

In the result, the original petition is disposed

of directing the Munsiff Court, Wadakkancherry to

consider and pass appropriate orders on Ext P2

application - E.A No.89 of 2020 in E.P No.47 of 2018

before the execution is proceeded with.

Sd/-

SATHISH NINAN

JUDGE

vdv OP(C).No.62 OF 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE APPEAL MEMORANDUM WITH THE JUDGMENTS OF THE COURTS BELOW FILED DATED 31.08.2017 BEFORE THIS HON'BLE COURT.

EXHIBIT P2 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER AS E A NO.89 OF 2020 IN WP NO.47 OF 2018 IN OS NO.489 OF 2003 ON THE FILE OF THE MUNSIFF COURT, WADAKKANCHERY DATED 20.03.2020.