Disposed

Indiramma v. Manoharan

Kerala HC4 Apr 2012OP(C)/1262/2012

Case brief

AI extract

What is this about?

The Court granted interim relief to the petitioner in an original petition challenging an order dismissing her application for stay. The Court directed the District Judge to issue a copy of the order and suspended the execution of the decree in the underlying suit temporarily.

What did the court decide?

Directed District Judge to issue copy of dismissal order; execution of decree stayed till 21.04.2012.

Indiramma Vs Manoharan — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934

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OP(C).No. 1262 of 2012 (O)

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AS.106/2012 of DISTRICT COURT,KOTTAYAM OS.39/2010 of MUNSIFF COURT, VAIKOM

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PETITIONER(S):

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INDIRAMMA, AGED 71 YEARS, W/O.BALAKRISHNAN, KOLLARIL THARA, T.V.PURAM P.O.,VAIKOM VILLAGE, VAIKOM TALUK.

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BY ADVS.SRI.S.SUDHEESH KUMAR

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SRI.J.JULIAN XAVIER SRI.K.B.DAYAL SRI.SIBI KARUN

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RESPONDENT(S):

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I. MANOHARAN, AGED 51 YEARS, S/O.RAJAPPAN ACHARI, KIZHEKKEVEETTIL, KANNUKETTISSERY MURI, VAIKOM VILLAGE, VAIKOM TALUK, PIN 686606.

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LALITHA SURESH, AGED 45 YEARS, S/O.LATE SURESH, BALAJI NIVAS, KOLLERIL HOUSE, KANNUKETTISSERY MURI, VAIKOM VILLAGE, VAIKOM TALUK, PIN 686606.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C)NO.1262/2012

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 TRUE COPY OF THE DECREE DATED 10.06.2010 IN OS NO.39/2010 OF MUNSIFF COURT, VAIKOM

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EXT.P2 TRUE COPY OF THE SALE DEED NO.922/1994 OF VAIKOM SRO

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EXT.P3 TRUE COPY OF THE CLAIM PETITION FILED BY THE PETITIONER AS EA NO.425/2010

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EXT.P4 TRUE COPY OF THE SALE NOTICE 8.12.2010 ISSUED BY THE ADVOCATE COMMISSIONER

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EXT.P5 TRUE COPY OF THE INTERIM ORDER PASSED IN OP(C) NO.1083/2010 OF THIS COURT ON 9.12.2010

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EXT.P6 TTRUE COPY OF JUDGMENT IN OP(C) NO.1083/2010 OF THIS COURT ON 1.12.2011

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EXT.P7 TRUE COPY OF THE DEPOSITION OF THE PETITIONER RECORDED IN THE CLAIM PETITION

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EXT.P8 TRUE COPY OF THE JUDGMENT IN EXT.P3, CLAIM PETITION DATED 17.3.2012

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EXT.P9 TRUE COPY OF THE STAY PETITION IN AS NO.106/20122 PENDING BEFORE THE DISTRICT COURT, KOTTAYAM

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EXT.P10 TRUE COPY OF THE AFFIDAVIT SWORN BY THE COUNSEL FOR PETITIONER IN THE ABOVE A.S,. NO.106/2012

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//TRUE COPY//

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THOMAS P. JOSEPH, J.

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-------------------------------------O.P.(C). No.1262 of 2012 -------------------------------------Dated this the 4^th day of April, 2012. JUDGMENT

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Notice to the respondents is dispensed with in view of the manner in which I propose to dispose of this original petition.

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1^st respondent filed O.S.No.39 of 2010 in the Munsiff's Court, Vaikom against the 2^nd respondent, as the learned counsel submits for a decree for prohibitory injunction against obstructing the pathway described as item No.2 in the plaint schedule and on the strength of a settlement reached between respondents 1 and 2, learned Munsiff decreed the suit on 10.06.2010. 2^nd respondent is the wife of deceased son of petitioner. He owned 11 cents through which according to the petitioner, the disputed pathway runs. Petitioner claimed that on the death of her son (husband of the 2^nd respondent) on 30.01.2001, the said property devolved on petitioner, 2^nd respondent and her children. But in O.S.No.39 of 2010, only the 2^nd respondent was impleaded and a decree was obtained as a result of collusion between respondents 1 and 2.

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Petitioner filed E.A.No.425 of 2010 in the executing court. Petitioner approached this Court with O.P.(C) No.1083 of 2010 and this Court by judgment dated 01.12.2011 directed the executing court to dispose of E.A.No.425 of 2010 (in E.P.No.165 of 2010 in O.S.No.39 of 2010) as early as possible. There was also a direction that execution of the decree to the extent

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OP(C) No.1262/2012 2

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it related to the property over which petitioner claims co-ownership right will stand in abeyance until disposal of E.A.No.425 of 2010.

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Executing court after recording evidence dismissed E.A.No.425 of 2010 by Ext.P8, order. Petitioner challenged that order in the District Court, Kottayam in A.S.No.106 of 2012 and filed Ext.P9, application (I.A.No.362 of 2012) for stay of execution of the decree in O.S.No.39 of 2010. Grievance of petitioner is that the said application was heard on 02.04.2012 and dismissed the same day. Petitioner has applied for a copy of the said order vide application No.770 with an urgent application (No.771) but is yet to receive a copy of order dated 02.04.2012 on Ext.P9, application.

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In the meantime, petitioner has filed O.S.No.768 of 2010 in the Sub Court, Kottayam to set aside the compromise decree in O..No.39 of 2010 on the ground of fraud, collusion, etc. and that case is posted on 28.05.2012 in the list for trial.

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Executing court had appointed an Advocate Commissioner to cut and remove trees standing in the disputed way over which petitioner claims coownership right. Advocate Commissioner had issued Ext.P4, notice for auction of certain trees. Learned counsel submits that pursuant to the dismissal of Ext.P9, application by the learned District Judge, Kottayam, execution petition (E.P.No.165 of 2010) is posed on 07.04.2012 and it is likely that the decree will be executed that day itself. Learned counsel asserts that petitioner and the children of 2^nd respondent have co-ownership right over the 11 cents through which 1^st respondent has claimed right of access. But a compromise decree is obtained without impleading petitioner and the children of 2^nd respondent as

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OP(C) No.1262/2012

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parties to the suit. Learned counsel has invited my attention to Ext.P4, notice issued by the Advocate Commissioner to show that several trees were proposed to be cut and removed from the property. Learned counsel requested that execution proceedings may be kept in abeyance so that in the meantime, petitioner could challenge the order dated 02.04.2012 on Ext.P9, application in appropriate proceeding.

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Having regard to the circumstances stated above I am inclined to grant some relief to the petitioner since otherwise, challenge to the order dated 02.0.2012 on I.A.No.362 of 2012 might become infructuous.

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Resultantly, this Original Petition is disposed of as under:

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i. Learned District Judge, Kottayam is directed to issue copy of order dated 02.04.2012 on Ext.P9, application (I.A.No.362 of 2012 in A.S.No.106 of 2012) as applied for vide application Nos.770 and 771 as early as possible, at any rate before 16.04.2012 (in case a copy of this judgment is produced before learned District Judge on 07.04.2012)

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ii. It is directed that execution proceedings in E.P.No.165 of 2010 in O.S.No.39 of 2010 of the court of learned Munsiff, Vaikom will stand in abeyance till 21.04.2012 (provided that a copy of this judgment is produced before the executing court on 07.04.2012).

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THOMAS P.JOSEPH, Judge.

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cks

Indiramma v. Manoharan

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Indiramma v. Manoharan

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