E.K.Salim vs Shamsudheen
2022 Latest Caselaw 11897 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
 WEDNESDAY, THE 21ST DAY OF DECEMBER 2022 / 30TH AGRAHAYANA, 1944
                      OP(C) NO. 2541 OF 2022
                 AS 30/2019 OF SUB COURT,ATTINGAL
PETITIONER/PETITIONER/APPELLANT/DEFENDANT:

          E.K.SALIM
          AGED 60 YEARS
          S/O EBRAHIM KUNJU, SALIM MANZIL, KARICHARA,
          ANDOOKONAM,
          PALLIPPURAM VILLAGE, THIRUVANANTHAPURAM DISTRICT,
          PIN - 695584

          BY ADV LATHEESH SEBASTIAN



RESPONDENT/RESPONDENT/RESPONDENT/PLAINTIFF:

          SHAMSUDHEEN
          AGED 52 YEARS
          S/O EBRAHIM KUNJU, KUZHIYIL PUNAVAM VEEDU, PRA 152,
          KANIYAPURAM P.O.,PALLIPPURAM VILLAGE,
          THIRUVANANTHAPURAM DISTRICT, PIN - 695301


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 2541 OF 2022          2




           Dated this the 21st day of December, 2022

                          JUDGMENT

The original petition is filed to direct the Court of the

Subordinate Judge, Attingal (Appellate Court), to consider

and dispose of I.A. No.384/2019 (Ext.P3) within a time

frame and until such time to stay all further proceedings

in E.P.No.36/2018 in O.S. No.469/2012 of the Court of the

Munsiff, Attingal (Trial Court).

2. The petitioner's case is that, he was the defendant

in the O.S. No.469/2012 filed by the respondent. The suit

was decreed on 28.01.2017. The petitioner has objected

to the decree by filing A.S. No.30/2019 before the

Appellate Court along with Ext.P3 application to condone

the delay of 582 days. The Appellate Court has not

considered the stay petition till date. The respondent is

now executing the decree. A warrant of arrest has been

issued against the petitioner. Therefore, the petitioner

has filed I.A. No.1/2022 in the appeal, to advance the

hearing of the delay condonation petition and hear the

same expeditiously. However, if the petitioner is arrested

in the meantime, he would suffer severe hardship.

Therefore, the execution court may be directed to keep

the coercive proceedings in abeyance. Hence, the

original petition.

3. Heard; Sri.Latheesh Sebastian, the learned

counsel appearing for the petitioner on admission.

4. The suit was decreed on 28.01.2017. The

petitioner preferred A.S. No.30/2019 on 12.03.2019. He

has also filed Ext.P3 application to condone the delay of

582 days in filing the appeal. He has also filed

I.A.No.394/2019 (Ext.P4) to stay the execution of the

decree.

5. Rule 3A of Order 41 of the Code of Civil Procedure

specifically lays down that a court shall not stay the

execution of a decree against which an appeal is

preferred, as long as the delay in filing the appeal is not

condoned.

6. In the case on hand, even though the petitioner

filed the appeal in the year, 2019, he has not sought for

the expeditious consideration of the delay petition or the

stay petition, which according to me was deliberate and

tacit attempt to protract the execution of the decree.

Now, when the warrant of arrest has been issued, the

petitioner has woken from his slumber and wants this

Court to stay the warrant of arrest by invoking the power

of superintendence of this Court under Article 227 of the

Constitution of India. What the petitioner has not done

directly under the statutory remedy cannot be permitted

under Article 227 of the Constitution of India. This Court

is not inclined to pass any direction in the original

petition or stay the execution petition because there is no

bonafides on the part of the petitioner. Nonetheless, the

Appellate Court may compassionately consider and

decide Ext.P3 application, in accordance with law at its

discretion and powers.

With the above observation, the original petition is

dismissed.

SD/-

C.S.DIAS, JUDGE

rmm21/12/2022

APPENDIX OF OP(C) 2541/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE DECREE MUNSIFF COURT, ATTINGAL IN O.S NO.469/2012 DATED 28.01.2017

Exhibit P2 TRUE COPY OF THE APPEAL MEMORANDUM IN A.S NO.30/2019 OF SUB COURT, ATTINGAL

Exhibit3 TRUE COPY OF THE PETITION IN I.A NO.384/2019 IN A.S NO.30/2019 OF SUB COURT, ATTINGAL

Exhibit P4 TRUE COPY OF THE PETITION IN I.A NO.394/2019 IN A.S NO.30/2019 OF SUB COURT, ATTINGAL

Exhibit P5 TRUE COPY OF THE CASE STATUS AS AVAILABLE IN THE ECOURT SERVICE IN E.P. NO.36/2018 OF MUNSIFF COURT, ATTINGAL

Exhibit P6 TRUE COPY OF THE PETITION IN I.A NO.1/2022 IN A.S NO.30/2019