Kerala High Court
Nivin Thomas vs Abraham K.M on 8 September, 2025
O.P.(C) No. 1587 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K. NATARAJAN
MONDAY, THE 8TH DAY OF SEPTEMBER 2025 / 17TH BHADRA, 1947
OP(C) NO. 1587 OF 2025
AGAINST OS NO.288 OF 2024 OF MUNSIFF COURT,
THALIPARAMBA
PETITIONERS/RESPONDENTS/DEFENDANTS:
1 NIVIN THOMAS
AGED 35 YEARS, S/O. THOMAS,
ETTAPURATH HOUSE, P.O. KARUVANCHAL, KALLADI,
VELLAD VILLAGE, TALIPARAMBA TALUK,
KANNUR DISTRICT, PIN - 670 571.
2 THOMAS E.T
AGED 70 YEARS, S/O. THOMAS,
ETTAPURATH HOUSE, P.O. KARUVANCHAL, KALLADI,
VELLAD VILLAGE, TALIPARAMBA TALUK,
KANNUR DISTRICT, PIN - 670 571.
BY ADVS.
SRI.CHRISTINE MATHEW
SHRI.T.C.SIBI
SHRI.RAPHAEL THEKKAN
RESPONDENT/PETITIONER/PLAINTIFF:
ABRAHAM K.M
AGED 80 YEARS, S/O. MATHEW,
KANATTU HOUSE, P.O. KARUVANCHAL,
VELLAD VILLAGE, TALIPARAMBA TALUK,
KANNUR DISTRICT, PIN - 670 571.
BY ADVS.
SRI.ZUBAIR PULIKKOOL
SHRI.SANTHOSH A.K
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
08.09.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C) No. 1587 of 2025
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JUDGMENT
(Dated this the 8th day of September, 2025)
This Original Petition is filed by challenging
Ext.P8 order of appointing the Advocate Commissioner in
IA No.10/2025 in O.S.No.288/2024 by the Munsiff Court,
Taliparamba.
2. Heard the arguments of the learned counsel for
the petitioners and the learned counsel for the
respondent.
3. The case of the petitioners is that the
respondent filed a Suit and obtained a temporary
mandatory injunction by filing an application under Order
39 Rule 1 of Code of Civil Procedure. Subsequently, the
petitioners being the defendants filed a first Appeal i.e.,
CMA No.4/2024 before the Sub Court, Payyannur. The
matter was finally heard by the Sub Court Judge and
reserved for orders on 08.11.2024. Thereafter, for almost
six months over but no order has been passed.
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Subsequently, that Judge has been transferred, the court
is kept vacant. Meanwhile, the respondent/plaintiff filed
an application for executing the order by appointment of
commissioner that was allowed by the Court.
Subsequently, one more application was filed for changing
the advocate commissioner which was came to be allowed
under impugned order dated 28.06.2025. Hence, the
petitioner is approached this Court.
4. The learned counsel for the petitioners submits
that the first appellate court already stayed the execution
and operation of the injunction granted by the Civil Court
on behalf of the plaintiff/respondent and heard the
arguments and reserved for final judgment in CMA
No.4/2024. such being the case, the trial court committed
error in appointing the commissioner for execution of the
order passed by the Court which is not correct. Therefore,
appointing the commissioner for execution of the
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injunction order and change the advocate commissioner
are erroneous. Hence, prayed for setting aside the order.
5. Per contra, the learned counsel for the
respondent submits that though the matter has been
seized by the first appellate court in CMA No.4/2024 but
no order has been passed. The order under challenge is
only changing the advocate commissioners as the earlier
commissioner was not practicing and stopped practicing.
Therefore, a new advocate commissioner has been
appointed. Therefore, it is only change of the advocate
commissioner name and it cannot be challenged. Hence,
prayed for dismissing the petition.
6. Having heard the arguments and perused the
records. On perusal of the same, which reveals that the
respondent was the plaintiff, filed suit against the
petitioners/defendants and also obtained mandatory
injunction order by filing an application under Order 39
Rule 1 of the Code of Civil Procedure in IA No.7/2024.
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Admittedly, the injunction order has been challenged
before the first Appellate Court i.e., Sub Court, Payyanoor
in CMA No.4/2024. It is an admitted fact by both the
counsels, initially the Sub Court granted stay of the
injunction granted in favour of the respondent. Heard the
arguments on merits and reserved for judgment, but no
judgment has been passed. Subsequently, the Judge also
said to be transferred. Therefore, the petitioner required
to argue the case once again afresh. However, from the
submission and the records, it is clear that the mandatory
injunction granted by the Munsiff Court, Taliparamaba has
been stayed by the Sub Court, Payyannur and the order of
injunction has been stayed. Such being the case, until
disposal of the CMA No.4/2024 the order cannot be
executable by the respondent even filing application,
appointing the commissioner or appointing new
commissioner does not arise until the order has been
confirmed by the first appellate court. Hence, the order
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cannot be executable. Such being the case, appointing the
commissioner or fresh commissioner for executing the
order of injunction on IA No.7/2024 does not arise.
Therefore, the order under challenge is liable to be set
aside.
7. Accordingly, the original petition is allowed.
i. The order dated 28.06.2025 in IA
No.10/2025 in O.S.No.288/2024 of the
Munsiff Court, Taliparamba is set aside.
ii. Liberty granted to the respondent for
pressing the orders in the IA
No.10/2025 for appointing the
commissioner for executing the order
after confirming the injunction order
passed by the trial Court.
iii. It is also directed to the Sub Court,
Payyannur/In charge Court of the Sub
Court, Payyannur to hear and dispose
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of the CMA No.4/2024 within one
month from the date of receipt of copy
of this judgment.
Sd/-
K. NATARAJAN
JUDGE
S.M.K.
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APPENDIX OF OP(C) 1587/2025
PETITIONER EXHIBITS
OF 2024 ON THE FILES OF MUNSIFF
COURT,TALIPARAMABA DATED 01.07.2024.
Exhibit P2 TRUE COPY OF ORDER IN IA NO 7 OF 2024
IN OS NO. 288 OF 2024 ON THE FILES OF
MUNSIFF COURT,TALIPARAMABA DATED
07.10.2024.
Exhibit P3 TRUE COPY OF C.M.A. 4 OF 2024 BEFORE
SUB COURT ,PAYYANNUR DATED 23.10.2024.
Exhibit P4 TRUE COPY OF SCREEN SHOT OF E COURT
PROCEEDINGS DATED 24.10.2024 IN C.M.A.
4 OF 2024 BEFORE SUB COURT, PAYYANNUR.
Exhibit P5 TRUE COPY OF SCREEN SHOT OF E COURT
PROCEEDINGS DATED 04.11.2024 IN C.M.A.
4 OF 2024 BEFORE SUB COURT, PAYYANNUR.
Exhibit P6 TRUE COPY OF SCREEN SHOT OF E COURT
PROCEEDINGS DATED NIL IN C.M.A. 4 OF
2024 BEFORE SUB COURT, PAYYANNUR.
Exhibit P7 TRUE COPY OF I.A. 10 OF 2025 IN OS NO.
288 OF 2024 ON THE FILES OF MUNSIFF
COURT,TALIPARAMABA DATED 23.05.2025.
Exhibit P8 TRUE COPY OF ORDER IN IA NO 10 OF 2025
IN OS NO. 288 OF 2024 ON THE FILES OF
MUNSIFF COURT,TALIPARAMABA DATED
28.06.2025.
