Alocious Fernandez vs J. Moosa Morais

Thomas P. Joseph, J.—At a time when the suit property identified by the Advocate Commissioner in the plan appended to the decree in O.S. No. 343 of 2008 of the court of learned Munsiff, Neyyattinkara was ordered to be delivered to the Respondents on 01.11.2010 Petitioners have come up with this petition complaining that their appeal against the ex parte judgment and decree which is under execution has not so far been disposed of by the learned Sub Judge, Neyyattinkara and the application for stay filed in the appeal is not disposed of. Respondents filed O.S. No. 343 of 2008 for declaration of their title and recovery of possession of the property while Petitioners filed O.S. No. 426 of 2008 for a declaration of their title and possession. On account of their absence when the case was posted, O.S. No. 343 of 2008 was decree ex parte and O.S. No. 426 of 2008 was dismissed for default. To set aside ex parte decree in O.S. No. 343 of 2008 and set aside dismissal of O.S. No. 426 of 2008 Petitioners filed applications before the learned Munsiff. Those applications were dismissed on 14.09.2010. Challenging the said orders Petitioners filed C.M.A. Nos. 21 and 22 of 2010 against the refusal to set aside the ex parte decree and set aside dismissal of the suit, respectively. It is submitted by learned Counsel that C.M.A. No. 21 of 2010 came up for hearing on 24.09.2010 and it was posted on 23.11.2010. There was an application for stay (Ext.P16) of execution of the decree. But since the appeal itself was being heard that application was not taken up. Appeal was heard on 08.10.2010 and posted for judgment on 22.10.2010. But the appeal was again posted on 23.11.2010 to be heard along with C.M.A. No. 22 of 2010 (filed against refusal to set aside dismissal of O.S. No. 426 of 2008). Grievance of Petitioners is that in the meantime executing court has ordered delivery of the property in O.S No. 343 of 2008 and accordingly delivery is scheduled to be effected on 01.11.2010. Hence Petitioners seek a direction to keep execution proceedings in abeyance until C.M.A. No. 21 of 2010 is disposed of.

Heard counsel for Petitioner.

Since Ext.P16, application for stay is pending in C.M.A.N o.21 of 2010, Petitioners should have requested learned Sub Judge to pass appropriate orders on that application. May be that application was not taken up since the appeal was posted for judgment on 08.10.2010. But judgment in the appeal has not so far been pronounced. In the circumstances I am inclined to direct that execution proceedings will stand in abeyance for a period of ten days from this day. In the meantime it will be open to the Petitioners to request learned Sub Judge to dispose of Ext.P16, application for stay in C.M.A. No. 21 of 2010.

Resultantly, Original Petition is disposed of in the following lines:

(i) Learned Principal Munsiff, Neyyattinkara shall keep in abeyance execution of the decree in O.S. No. 343 of 2008 for a period of ten days from this day.

(ii) In the meantime it will be open to the Petitioners to approach learned Sub Judge, Neyyattinkara and request for disposal of Ext.P16, application for stay in C.M.A. No. 21 of 2010 and if necessary seek to advance hearing of that application. If any such request for advancing haring of Ext.P16, application is made learned Sub Judge shall pass appropriate orders regarding advancement of Ext.P16, application and pass appropriate orders on that application after hearing both sides.