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2013 DIGILAW 857 (KER)

Suseelan v. Ahammed Kannu Syed Muhammed

2013-10-01

P.N.RAVINDRAN

body2013
JUDGMENT 1. The petitioner is the 11th defendant in O.S.No.287 of 2007 on the file of the Court of the First Additional Munsif of Neyyattinkara. The respondents are the plaintiffs therein. The suit instituted by the respondents for declaration of title and possession and for other reliefs was decreed by Ext.P6 judgment delivered on 28.1.2012. The operative portion of Ext.P6 judgment in O.S.No.287 of 2007 reads as follows:- "14. In the result the suit is decreed as follows:- 1. It is hereby declared that first plaintiff got title and possession over B schedule item No.1 to 6 properties. 2. Eleventh defendant is restrained from trespassing into B schedule item No.1 to 6 properties and from cutting down the trees in it and from making any constructions in it and from interfering with the possession of the first plaintiff over B schedule item No. 1 to 6 properties. 3. First plaintiff is allowed to demolish D schedule item No.1 and 2 sheds which were shown in green shade in B schedule item No.2 properties in Ext.C1(a) plan at his own costs through court. 4. First plaintiff is allowed to put up boundary along B1, IIF, A1, A2 A3 A4, A5 A3, RY, YZ, ZA6 and A6 A5 lines in Ext.C1(a) plan through court. 5. Plaintiffs are allowed to realise the costs from eleventh defendant. 6. Ext.C1(a) Plan shall form part of the decree." 2. Aggrieved by Ext.P6 judgment and decree, the 11th defendant filed A.S.No.85 of 2012 in the Court of the Subordinate Judge of Neyyattinkara. Along with that appeal he filed I.A.No.594 of 2013 seeking stay of execution of the decree passed by the trial court. By Ext.P10 order passed on 12.6.2013, the lower appellate court dismissed the application. Hence this original petition under Article 227 of the Constitution of India. 3. When this original petition came up for hearing before me after service of notice on the respondents, after hearing learned counsel on both sides, by order passed on 20.8.2013 I stayed the execution of the decree passed by the trial court in so far as it relates to demolition of the sheds described in the plaint D schedule. That order is even today in force. That order is even today in force. When the original petition thereafter came up for hearing, learned counsel on both sides submitted that the original petition may be disposed of with a direction to the lower appellate court where A.S.No.85 of 2012 is pending to dispose of the appeal within a time limit to be stipulated by this Court and to maintain the interim order passed by this Court on 20.8.2013 till such time as the appeal is heard and disposed of. Since this Court was not sure whether the appeal is ripe for hearing, by order passed on 26.9.2013 this Court directed the Registry to call for a report from the Court of the Subordinate Judge of Neyyattinkara as to whether all the respondents in A.S.No.85 of 2012 have been served. The Presiding Officer has submitted a report dated 28.9.2013 to the effect that except respondents 4 and 5 therein, who are defendants 2 and 3 in the suit, all the other respondents in A.S.No.85 of 2012 have been served. The Presiding Officer has also reported that the appellant has not taken steps to issue notice to respondents 4 and 5 in the court below. 4. When the original petition came up for hearing today, Sri.Jojo George, learned counsel appearing for the petitioner (the appellant in A.S.No.85 of 2012) submitted that he will serve notice on respondents 4 and 5 through special messenger and after service of notice on respondents 4 and 5 in the appeal, the appellate court may be directed to dispose of the appeal before 31.12.2013. Learned counsel appearing for the respondents/ plaintiffs did not oppose the said submission. In such circumstances I dispose of the original petition with the following directions:- (a) The petitioner herein, who is the appellant in A.S.No.85 of 2012 on the file of the Court of the Subordinate Judge of Neyyattinkara, shall within two weeks from today take steps to serve notice on respondents 4 and 5 in that appeal by special messenger at his expense by taking appropriate steps in that regard before the first appellate court where the appeal is pending. (b) The Court of the Subordinate Judge of Neyyattinkara shall, after notice of A.S.No.85 of 2012 is served on respondents 4 and 5, hear and dispose of the appeal expeditiously and in any event before 31.12.2013. (b) The Court of the Subordinate Judge of Neyyattinkara shall, after notice of A.S.No.85 of 2012 is served on respondents 4 and 5, hear and dispose of the appeal expeditiously and in any event before 31.12.2013. (c) The Court of the First Additional Munsiff of Neyyattinkara shall, within two weeks from today, transmit the records in the suit to the Court of the Subordinate Judge of Neyyattinkara where A.S.No.85 of 2012 is pending. (d) Until such time as A.S.No.85 of 2012 is heard and disposed of, the interim order passed by this Court on 20.8.2013 staying the execution of the decree in O.S.No.287 of 1997 on the file of the Court of the First Additional Munsiff of Neyyattinkara, in so far as it relates to the demolition of the sheds described in the plaint D schedule, shall remain in force. (e) In all other respects, the decree of the trial court shall continue to operate. Registry to communicate a copy of the judgment to the trial court as well as the first appellate court.