K.P. Madanamohanan Nair vs Remadevi and Others

Thomas P. Joseph, J.—Petitioner is a non party in E.P. No. 51 of 2011 in O.S. No. 345 of 2002 of the Court of learned Munsiff, Perumbavoor. In that case, preliminary and final decree for partition are already been passed. Petitioner who is not a party to that litigation claimed to be one of the legal heirs of Padmanabhan Nair to whom, it is said the property originally belonged. He filed O.S. No. 85 of 2006 in the same Court for a declaration that the preliminary and final decrees in O.S. No. 345 of 2002 are not binding on him and for partition and other reliefs. That suit was dismissed. Against that judgment and decree, Petitioner filed A.S. No. 68 of 2010 which is pending consideration before the Sub Court, Perumbavoor. It is submitted that during pendancy of O.S. No. 85 of 2006 there was an order restraining the Respondents from taking delivery of property pursuant to the preliminary and final decrees in O.S. No. 345 of 2002. In A.S. No. 68 of 2010 Petitioner filed Ext.P5, application for stay of execution in O.S. No. 345 of 2002 but that application is posted on 05.09.2011. Learned Counsel submitted that A.S. No. 68 of 2010 was heard in part but, now is posted on 05.09.2011. In the meantime, decree in O.S. No. 345 of 2002 going to be executed. It is therefore prayed that execution proceedings may be kept in abeyance.

I have heard learned Counsel for Respondents 1 to 3/decree holders in O.S. No. 345 of 2002.

Since it is submitted that challenging preliminary and final decrees in O.S. No. 345 of 2002 Petitioner has preferred O.S. No. 85 of 2006 and dismissal of that suit is under challenge in A.S. No. 68 of 2010, that appeal was heard in part and now posted on 05.09.2011, I am inclined to direct that delivery proceeding in E.P. No. 51 of 2011 will stand in abeyance for some time so that in the meantime it is open to the Petitioner to seek relief on Ext.P5, application for stay in A.S.No68 of 2010.

Resultantly this original petition is disposed of directing that the delivery proceeding in E.P. No. 51 of 2011 of the Court of learned Munsiff, Perumbavoor will stand in abeyance for a period of one month from this day or till learned Sub Judge passes orders on Ext.P5, application for stay in A.S. No. 68 of 2010 or that appeal itself whichever is earlier. Parties are at liberty to request learned Sub Judge to dispose of Ext.P5, application or the appeal itself as early as possible having regard to the time limit granted by this order.