K.M. Kumaran vs Ouseph John and Others

Thomas P. Joseph, J.—Respondents 2 to 5 appeared through counsel.

Heard both sides. First Respondent filed a suit for prohibitory injunction against trespass and cutting open a pathway through plaint schedule property and obtained a decree against Petitioner. In S.A. No. 236 of 1996, this Court interfered with the judgment and decree of the courts below and remanded the case for further evidence. Further evidence was recorded and again the suit was decreed on 12.04.2011 restraining Petitioner from entering the suit property though Petitioner had made a claim of easement over the said property. Petitioner has applied for a copy of the judgment and decree. But so far, it has not been obtained.

The prayer in this petition is to stay execution of the decree and judgment dated 12.04.2011 in O.S. 152/1991 of the court of the learned Munsiff, until the appeal is filed. Learned Counsel submitted that in view of the decree Petitioner is not able to enter his property. I have heard the learned Counsel for Respondents 2 to 5 as well.

In the judgment in S.A. No. 236 of 1996, this Court has made reference to a pathway marked C-D in Ext.C3, plan prepared by the Advocate commissioner. Having regard to the circumstances stated, I am inclined to permit Petitioner to use the way for a period of one month or till the appellate court passed appropriate orders whichever is earlier.

Resultantly, this original petition is disposed of permitting the Petitioner and family to use the pathway marked in C-D in Ext.C3 plan for a period of one month from this day or till the appellate court passed appropriate orders on the interlocutory application preferred by Petitioner, whichever is earlier.