JOHN PANICKER v. DANIEL ALEXANDER

S.S.SATHEESACHANDRAN, J.-----------------------------------W.P.(C).No.26716 of 2008 - E---------------------------------Dated this the 4th day of August, 2009J U D G M E N TThe writ petition is filed seeking the following reliefs:

i)To call for the records leading to Ext.P2 and mayquash the same by issuing a writ in the nature ofcertiorari.ii)To direct the learned Sub Judge, Kottarakkara toallow I.A.No.782 of 2008 in A.S.No.130/2005 and passorders staying all further proceedings in execution inO.S.No.97 of 1980 of the Munsiff Court, Kottarakkara.

Parties in the writ petition were the contesting partiesin two suits O.S.No.97 of 1980 and O.S.No.82 of 1980, both ofwhich were jointly tried by the Munsiff Court, Kottarakkara. Petitioner filed O.S.No.82 of 1980 for declaration of his title, possession and perpetual prohibitory injunction. The respondentsfiled O.S.No.97 of 1980 for the same reliefs. After trial,O.S.No.82 of 1980 was dismissed and O.S.No.97 of 1980 wasdecreed in favour of the respondents. Petitioner preferred twoappeals against the decree and judgment passed in the abovetwo suits and while the appeals are pending, respondent movedan application under Order XXI Rule 32 CPC before the execution W.P.(C).No.26716 of 2008 - E2court alleging violation of the decree of injunction by thepetitioner. Immediately, petitioner moved an application in thepending appeals, under Order XLI Rule 5 CPC for staying theoperation of the decree in O.S.No.97 of 1980. That applicationwas dismissed by the appellate court and propriety andcorrectness of that order is challenged in the writ petitioninvoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

I heard the counsel on both sides.

Having regard to the submissions made and the factsand circumstances presented, I find that an early hearing anddisposal of the two appeals, A.S.Nos.129 and 130 of 2005, bothpending before the Sub Court, Kottarakkara, is essential to give aquietus to the whole controversy. Submissions made by thecounsel indicate that service is complete in the appeals and theyare ready and ripe for hearing. Appeals are seen filed nearly fouryears ago. The learned Sub Judge is directed to hear and disposeof the two appeals, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of thisjudgment. The learned counsel for the respondent also fairly W.P.(C).No.26716 of 2008 - E3submitted that E.P.No.7 of 2008 filed before the execution courtalleging violation of the decree of injunction by the respondentwill not be pursued till the appeals are heard and disposed onmerits, but, reserving his right to file fresh petition in the eventof any subsequent violation of the decree already granted infavour of the petitioner/counter petitioner in the pendingexecution petition. Submissions made by the counsel as above isrecorded.

Learned Munsiff, Kottarakkara is directed to keep inabeyance further proceedings in E.P.No.7 of 2008 till the disposalof the above mentioned appeals. This judgment will not affectthe rights of the respondent to move application, if need be, ifthere is subsequent violation of decree of injunction by thepetitioner. Subject to the aboservation made above the writ petition isclosed. Hand over a copy of the judgment to the counsel on bothsides and transmit a copy to the Sub Court and Munsiff Court, Kottarakkara. S.S.SATHEESACHANDRAN, JUDGE. bkn/-