Kerala High Court
Hellen Stellas vs Blessy on 27 July, 2022
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
******************
I.A.No.01 of 2020
in
R.S.A.No.795 of 2017
---------------------------------------------
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
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
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
