Partly allowed

Narayanaswamy v. Mani

Kerala HC2 Dec 2016OP(C)/1780/2016

Case brief

AI extract

What is this about?

Petitioner challenged orders dismissing an application for joint trial of execution petitions and for stay of proceedings. Court set aside the dismissal for joint trial and remitted the matter with directions for expeditious adjudication regarding mandatory injunction for right of way.

What did the court decide?

Order dismissing application for joint trial set aside; matter remitted for joint trial and decision on mandatory injunction within one month.

Narayanaswamy Vs Mani — Partition | Kerala HC (2016)

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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 K.RAMAKRISHNAN

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FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938

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OP(C).No. 1780 of 2016 (O)

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EA 436/2016 & EA 501/2016 IN EP 215/2016 IN OS 310/1987 OF PRINCIPAL SUBORDINATE COURT,IRINJALAKUDA

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PETITIONER:

NARAYANASWAMY,

AGED 85, S/O. VARADARAJA IYER, CHIRAYATHU MADOM, NADAVARAMBA P.O. THRISSUR DISTRICT-680 661.

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BY ADV. SRI.T.N.MANOJ

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RESPONDENT(S):

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1. MANI, AGED ABOUT 65 YEARS, CHIRAYATH MADOM SREENIVASAN, NADAVARAMBA P.O, THRISSUR DISTRICT-680 661.

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2. MOHANA SREENIVASAN, W/O. CHIRAYATH MADOM SREENIVASSAN, AGED ABOUT 60, NADAVARAMBA P.O.680 661, THRISSUR DISTRICT.

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3. SEETHALAKSHMI, AGED ABOUT 80, W/O. CHIRAYATH MADOM MAHALINGAM, VELLANGALLUR P.O, THRISSUR DISTRICT-680 662.

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BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SMT.VINAYA V.NAIR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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OP(C).No. 1780 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 COPY OF EP 215/2015 IN OS 310/1987 IN THE COURT BELOW. EXHIBIT P2 COPY OF OBJECTIONS THERETO IN -DOEXHIBIT P3 COPY OF EP 314/2015 IN -DOEXHIBIT P4 COPY OF OBJECTIONS THERETO IN -DOEXHIBIT P5 COPY OF EA NO.436/2016 IN -DOEXHIBIT P6 COPY OF EA 501/2016 IN -DOEXHIBIT P7 COPY OF ORDER DATED 13.7.2016 ON EA 436/2016 IN -DOEXHIBIT P8 COPY OF ORDER DATED 13.7.2016 ON EA 501/2016 IN -DO-. RESPONDENT(S)' EXHIBITS NIL -----------------------

/TRUE COPY/

P.A.TO JUDGE

K.V.

K. RAMAKRISHNAN, J.

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....................................... O.P.(C).No.1780 of 2016

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Dated this the 2^nd day of December, 2016.

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JUDGMENT

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This is a petition filed by the petitioner challenging Ext.P7 and P8 orders passed by the court below under Article 227 of the Constitution of India.

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It is alleged in the petition that the suit OS.310/1987 was filed by the respondents herein for partition of the plaint schedule property and a preliminary decree for partition was passed thereafter a compromise was entered into between the parties and a compromise decree has been passed. Respondents 1 and 2 filed EP.No.314/2015 for executing the decree contending that the pathway has been blocked and they wanted to remove the obstruction caused to the pathway on the basis of the final decree. The third respondent filed E.P.No.215/2015 for identical prayer. The petitioners filed Ext.P2 and P3 objections and also filed Ext.P5 application as EA.No.436/2016 for joint trial of these two execution petitions pending before the same court and also filed EA.No.501/2016 to stay the proceedings till the suit filed by respondents 1 and 2 for mandatory injunction as OS.No.2727/2014 pending before the same court was disposed of. The court below by Ext.P7 and P8 orders dismissed both the applications.

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When the petition came up for hearing today, Sri.

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Santhosh Poduval who is appearing for respondents 1 to 3

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O.P.(C).No.1780 of 2016 2

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submitted that he had no objection for joint trial of both the execution petitions as the execution petitions were filed against the same decree claiming the same relief. The question as to whether they are entitled to right of way through this property is a matter to be decided in the execution proceedings. He had no objection in considering the question as to whether they are entitled for removal of obstruction by way of mandatory injunction in the execution proceedings in respect of way claimed for which purpose the execution petitions need not be stayed.

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So considering the circumstances, the order passed by the court below dismissing the application for joint trial is set aside and the matter is remitted to the court below to consider EP.Nos.215/2016 and 314/2015 in OS.No.310/1987 on the file of the Principal Sub Court, Irinjalakuda together as the prayer is in respect of the same way claimed by both the parties and pass appropriate orders in the execution petitions and the court below is directed to consider the question as to whether the decree holders are entitled for a mandatory injunction to use the disputed pathway after considering the objections raised by the respondents in the execution proceedings and pass appropriate orders in that as expeditiously as possible within a period of one month from the date of receipt of a copy of this judgment. This court is not interfering with Ext.P6 order passed by the court

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O.P.(C).No.1780 of 2016

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below declining to stay the execution proceedings during the pendency of OS.No.2727/2014 as this court has directed that court to consider the question as to whether any direction has to be given to remove the obstruction if any caused to the alleged pathway claimed by the decree holders which they said to have obtained by virtue of the final decree passed.

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Registry is directed to communicate a copy of this judgment to the court below at the earliest.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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Narayanaswamy v. Mani

Case brief

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Narayanaswamy v. Mani

Case brief

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