Geetha Mohanan vs Ajitha Jayakumar
2025 Latest Caselaw 9059 Ker

Kerala High Court

Geetha Mohanan vs Ajitha Jayakumar on 23 September, 2025

Author: Murali Purushothaman

Bench: Murali Purushothaman

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

 TUESDAY, THE 23RD DAY OF SEPTEMBER 2025 / 1ST ASWINA, 1947

                    OP(C) NO. 2091 OF 2025

  AGAINST THE ORDER DATED 12.08.2025 IA.NO.1 OF 2025 IN AS

 NO.65 OF 2025 PASSED BY THE DISTRICT COURT,   PATHANAMTHITTA

PETITIONER(S)/PETITIONERS/APPELLANTS:

    1     GEETHA MOHANAN
          AGED 55 YEARS, W/O. LATE T.S. MOHANAN, THOMPIL
          VALLYATHU, MANIYAR P.O., KUMARAMPEROOR VADAKKEKKARA
          MURI, VADASSERIKKARA VILLAGE, RANNI TALUK,
          PATHANAMTHITTA DISTRICT, PIN - 689662

    2     GEETHU MOHANAN
          AGED 34 YEARS, D/O. LATE T.S. MOHANAN, THOMPIL
          VALLYATHU, MANIYAR P.O., KUMARAMPEROOR VADAKKEKKARA
          MURI,VADASSERIKKARA VILLAGE, RANNI TALUK,
          PATHANAMTHITTA DISTRICT, PIN - 689662

    3     MANU MOHANAN
          AGED 28 YEARS, S/O. LATE T.S. MOHANAN, THOMPIL
          VALLYATHU, MANIYAR P.O., KUMARAMPEROOR VADAKKEKKARA
          MURI, VADASSERIKKARA VILLAGE, RANNI TALUK,
          PATHANAMTHITTA DISTRICT, PIN - 689662


          BY ADVS.
          SRI.SHIJU VARGHESE
          SHRI.T.M.MANU
          SMT.ANAINA VARGHESE


RESPONDENT(S)/RESPONDENTS/RESPONDENTS:

    1     AJITHA JAYAKUMAR
          AGED 65 YEARS, W/O. JAYAKUMAR, JAYA NIVAS,
          TEC. NO.23 27,VALIYASALA WARD, CHANGAZHASSERY
          VILLAGE, TRIVANDRUM TALUK , TRIVANDRUM DISTRICT,
          PIN - 695005

    2     ANNAMMA KURIYAN
          AGED 76 YEARS, W/O. V.N KURIEN, VATTAZHAYIL SHAIJU
                                                           2025:KER:71063
OP(C) NO. 2091 OF 2025

                                   ..2..


             BHAVAN, PRAKKANAM P.O. AND MURI, CHENNEERKKARA
             VILLAGE, PATHANAMTHITTA DISTRICT, PIN - 689643

    3        JOSEPH MATHEW
             AGED 60 YEARS, S/O. M.C. MATHAI CHACKO,
             MURINGASSERIL VEEDU, ERAVIPEROOR P.O., ERAVIPEROOR
             MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK,
             PATHANAMTHITTA DISTRICT, PIN - 689541

    4        T.M. VARGHESE
             AGED ABOUT 65 YEARS, S/O. T.K. MATHEW, THOLUKUNNEL
             VEEDU, MANIYAR P.O., VADASSERIKKARA VILLAGE,
             PATHANAMTHITTA DISTRICT, NOW RESIDING AT
             THOLUKUNNEL HOUSE, MUYYAM P.O., THALIPARAMBA,
             KANNUR DISTRICT, PIN - 670142


             BY ADVS.
             SHRI.M.V.S.NAMPOOTHIRY
             SRI.JOSEPH SEBASTIAN PURAYIDAM
             SMT.ASWATHY BOSE
             SRI.P.JAISON SUNNY


     THIS     OP   (CIVIL)    HAVING       COME    UP   FOR   HEARING   ON
23.09.2025,     THE   COURT   ON    THE     SAME    DAY   DELIVERED     THE
FOLLOWING:
                                                          2025:KER:71063
OP(C) NO. 2091 OF 2025

                                ..3..



                          JUDGMENT

This original petition is filed against Ext.P4 order dated

12.08.2025 in I.A.No.1 of 2025 in A.S. No.65 of 2025 passed by

the District Court, Pathanamthitta.

2. O.S.No.126 of 1995 filed by the 1 st respondent herein

for declaration of title, recovery of possession and injunction was

decreed on 31.07.2004 and has become final. The 1 st respondent

preferred E.P.No.157 of 2004.

3. The petitioners are legal heirs of one T.S.Mohanan who

filed E.A.No.20 of 2024 in E.P.No.157 of 2004 in O.S.No.126 of

1995 claiming that they are bona fide purchasers of the plaint

schedule property. The claim petition was dismissed on

15.06.2025. The petitioners preferred A.S.No.65 of 2025 before

the District Court, Pathanamthitta against the dismissal of the

claim petition. They also filed I.A.No.1 of 2025 under Order 41

Rule 5 of the Code of Civil Procedure (CPC) to stay the execution

proceedings. The Appellate Court, by Ext.P4 order, dismissed the

application for stay. It is stated that the appeal itself is posted for

hearing on 05.11.2025. The grievance of the petitioners is that the 2025:KER:71063 OP(C) NO. 2091 OF 2025

..4..

Appellate Court, by Ext.P4 order has practically neutralised the

appeal itself when delivery of the property was ordered in

E.P.No.157 of 2004 and is posted to 22.08.2025.

4. The 1st respondent has filed objection to the original

petition resisting the averments therein.

5. When the matter came up for consideration on

27.08.2025, it was submitted by the learned counsel for the

petitioners that the petitioners have already approached the

District Court, Pathanamthitta by filing I.A.No.2 of 2025 to

advance A.S.No.65 of 2025 for hearing. Accordingly, this original

petition was posted to 08.09.2025, the date on which the court re-

opened after Onam vacation. This Court also stayed the delivery of

the plaint schedule property in O.S.No.126 of 1995 and E.P.No.157

of 2004 of the Sub Court, Pathanamthitta till such time. The

interim order is being extended from time to time. When the

original petition came up for consideration on 22.09.2025, it was

submitted by Sri.Shiju Varghese, the learned counsel for the

petitioners that A.S.No.65 of 2025 is posted for hearing on the said

date. Accordingly, the matter was adjourned to this day and the 2025:KER:71063 OP(C) NO. 2091 OF 2025

..5..

interim order was extended till today. Today, when the matter is

taken up for further consideration, Sri.Shiju submitted that the

appeal is adjourned to tomorrow.

6. Sri.M.V.S.Nampoothiry, the learned counsel for the 1 st

respondent strongly opposed the request of the petitioners for

extension of interim order. It is submitted by the learned counsel

that 1st respondent is not in a position to enjoy the fruits of the

decree passed two decades ago and that the only intention of the

petitioners by filing this original petition is to delay the delivery of

the property.

7. I.A.No.1 of 2025 in A.S.No.65 of 2025 which

culminated in Ext.P4 order is filed under Order 41 Rule 5 of the

CPC. The said Rule provides that an appeal shall not operate as a

stay of proceedings under a decree or order appealed from except

so far as the Appellate Court may order, nor shall execution of a

decree be stayed by reason only of an appeal having been

preferred from the decree; but the Appellate Court may for

sufficient cause order stay of execution of such decree. It is trite

that the right of appeal is statutory; but prayer for grant of stay 2025:KER:71063 OP(C) NO. 2091 OF 2025

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has to be dealt with in exercise of equitable discretionary

jurisdiction of the Appellate Court. While ordering stay, the

Appellate Court must be mindful of the fact that it is depriving the

successful litigant of the fruits of the decree and postponing its

execution. In Ext.P4 order, the Appellate Court has observed that

almost 30 years have already been elapsed since the institution of

the original suit and therefore, the petitioners being the successors

in interest of the losers in the suit, are not entitled to get any

better relief than the defendants and hence the execution

proceedings cannot be stayed on the so called ground that the

original claim petitioner is a bona fide purchaser for value.

Accordingly, the Appellate Court observed that the petitioners are

not entitled to get stay of execution proceedings and dismissed the

interlocutory application.

8. I find no error in the exercise of discretionary

jurisdiction by the Appellate Court under Order 41 Rule 5 of the

CPC. I do not find any ground to interfere with Ext.P4 order in

exercise of the original jurisdiction under Article 227 of the

Constitution of India and the original petition is dismissed.

2025:KER:71063 OP(C) NO. 2091 OF 2025

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Since A.S.No.65 of 2025 is stated to be posted for

consideration tomorrow before the Appellate Court, the learned

District Judge shall take earnest efforts to dispose of the same as

expeditiously as possible, at any rate, before 30.09.2025. The

parties shall cooperate for disposal of the appeal. The delivery of

the plaint schedule property pursuant to Ext.P4 order shall stand

deferred till the disposal of A.S.No.65 of 2025.

Sd/-

MURALI PURUSHOTHAMAN JUDGE YKB 2025:KER:71063 OP(C) NO. 2091 OF 2025

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APPENDIX

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE APPEAL MEMORANDUM IN AS NO. 65/2025 DATED 18.07.2025 Exhibit P2 TRUE COPY OF IA NO.1/2025 DATED 18.07.2025 Exhibit P3 TRUE COPY OF THE OBJECTIONS DATED 02.08.2025 Exhibit P4 TRUE COPY OF THE ORDER IN IA 1/2025 IN AS 65/2025 DATED 12.08.2025 Exhibit P5 TRUE COPY OF THE EA NO. 20/2024 IN E P NO. 157/2004 IN O S NO. 126/1995 Exhibit P6 TRUE COPY OF OBJECTIONS DATED 02.03.2024 Exhibit P7 TRUE COPY OF ORDER IN E A NO. 20/2024 DATED 17.06.2025 Exhibit P8 TRUE COPY OF DOCUMENT NO. 1207/2013 Exhibit P9 TRUE COPY OF THE LAND TAX RECEIPT DATED 31.07.2025 RESPONDENT EXHIBITS

Exhibit R1A True copy of order dated 31.7.2004 in IA 639/2004 in OS 126/1995 of Sub Court, Pathanamthitta Exhibit R1B True copy of judgment dated 17.01.2024 in OPC No. 79 of 2024 of this Honourable Court Exhibit R1C True copy of judgment dated 3.4.2025 in RFA No. 491 of 2005 of this Honourable Court Exhibit R1D True copy of judgment dated 3.4.2025 in FAO No. 6 of 2005 of this Honourable Court