The High Court of Kerala directed the trial court to dispose of an application to set aside an ex parte decree within two weeks and the appellate court to withhold judgment on an appeal pending the trial court's decision, to prevent merger of decrees.
Direction to trial court to dispose of I.A. by 13/02/09 and appellate court to withhold judgment pending said disposal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930
WP(C).No.280 of 2009 (G) ------------------------------AS.126/2004 of SUB COURT,NEYYATTINKARA ....................
PETITIONER: ---------------
S.REMA AGED 41 YEARS, D/O. REMADEVI, CHILAMBARA COLONY VEEDU, CHILAMBARA, ARYANCODE, NANCHANCODE P.O., NOW RESIDING AT VISHNUMANGALAM, KAVALLOOR KEEZHAROOR, NEYYATTINKARA.
BY ADV. SRI.G.S.REGHUNATH
RESPONDENT:
----------------
BAHULEYAN NAIR DESCRIBED AS S/O. PARAMESWARAN PILLAI, VADAKKEKARA PUTHEN VEEDU, KORALA, KEEZHAROOR, NEYYATTINKARA.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.P.BALACHANDRAN, J.
W. P. C. No.280 of 2009
Dated this the 5th day of January, 2009
JUDGMENT
Counsel for the petitioner submits that I.A.4216/08 filed by the 20th defendant who is
the petitioner herein for setting aside the ex parte decree passed in O.S.758/01 is pending before the trial court; that the respondent/ plaintiff has entered appearance that there is no difficulty in disposing of the said I.A. in case the respondent/plaintiff files objection, if any, as the petitioner is ready to adduce evidence on any day on which the I.A is posted; that in the meanwhile A.S.126/04 filed by some other defendants against the decree and judgment in O.S.758/01 is likely to be disposed of by the Sub Judge, Neyyattinkara as it stands posted for hearing finally to 09/01/09 especially in view of the report furnished by the Sub Judge to this Court in
W. P. C. No.280 of 2009
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W.P.C.32496/08 and that the trial court be directed to dispose of I.A.4216/08 within a time limit and the Sub Judge, Neyyattinkara be directed not to dispose of the appeal before orders are passed on I.A.4216/08 as otherwise the decree of the trial court will get merged in the appellate court decree and the petitioner will find it difficult to work out her remedies in the circumstances.
counsel for the petitioner, I direct the Munsiff, Neyyattinkara to cause counter if any, to be filed by the plaintiff/respondent in I.A.4216/08 positively in another two weeks and to dispose of the said I.A. positively on or before 13/02/09. In the meanwhile, the Sub Judge Neyyattinkara shall withhold passing of judgment in A.S.126/04 and shall deliver judgment in A.S.126/04 only after disposal by the Munsiff of I.A.4216/08 in O.S.758/01. The
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W. P. C. No.280 of 2009
petitioner is directed to produce one copy each of this judgment before the Munsiff, Neyyattinkara and the Sub Judge, Neyyattinkara to enable those officers to comply with the directions herein. The copies shall be so produced before the officers with notice to the respondent as this Writ Petition is being disposed of without notice to the respondent.
the above directions.
K.P.BALACHANDRAN, JUDGE
kns/-
2 issues framed by the court
Whether to issue directions to lower courts to coordinate disposal of an application under review with a related appeal pending in the appellate court.
Whether to stay the disposal of an appeal pending the disposal of an interim application under Section 11 of the Specific Relief Act, 1963.
S. Rema
Bahuleyan Nair
K.P. Balachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
