Disposed

P.K.Mohammed Basheer v. P.K.Zachariah

Kerala HC7 Jan 2016OP(C)/2892/2015

Case brief

AI extract

What is this about?

The petitioner sought to set aside a possession decree under Order 9 Rule 13 CPC and requested a stay on execution pending a connected charters appeal. The court granted a conditional stay until the appeal is disposed of within one month.

What did the court decide?

Stay of execution of the decree for delivery of possession until the disposal of the connected charters appeal, with a direction to dispose of the appeal within one month.

P.K.Mohammed Basheer Vs P.K.Zachariah — Execution and Attachment | 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.ABRAHAM MATHEW

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THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937

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OP(C).No. 2892 of 2015 (O)

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IN O.S. NO.123/2012 OF SUB COURT, KATTAPPANA

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PETITIONER(S):

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P.K.MOHAMMED BASHEER, AGED 65, S/O. LATE KOCHUTHAMPI RAWTHER, RESIDING AT KUNNAKKAL HOUSE, KODIKUTHY KARA, PERUVANTHANAM VILLAGE, PEERUMEDU TALUK, IDUKKI DISTRICT, NOW RESIDING AT KUNNAKKAL HOUSE, PARAVOOR, ALAPPUZHA DISTRICT.

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BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.JOMON K.CHACKO

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RESPONDENT(S):

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1. P.K.ZACHARIAH, AGED 57 YEARS, S/O. KOCHUTHAMPI RAWTHER,

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RESIDING AT KUNNAKKAL HOUSE, KODIKUTHY KARA, PERUVANTHANAM VILLAGE, PEERUMEDU TALUK,

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IDUKKI DISTRICT-685 530.

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2. NARGIS ZACHARIAH,

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AGED 37 YEARS, W/O. ZACHARIAH, RESIDING AT KUNNAKKAL HOUSE, KODIKUTHY KARA, PERUVANTHANAM VILLAGE, PEERUMEDU TALUK, IDUKKI DISTRICT-685 530.

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R1,R2 BY ADV. SRI.T.I.ABDUL SALAM R1,R2 BY ADV. SRI.PHILIP T.VARGHESE R1,R2 BY ADV. SMT.K.R.MONISHA

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rvs.

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OP(C).No. 2892 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT. P1:TRUE PHOTOSTAT COPY OF THE PLAINT IN OS NO 123/2012 ON THE FILES OF SUB COURT, KATTAPPANA.

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EXT. P2:TRUE PHOTOSTAT COPY OF THE PLAINT IN OS NO 101/2010 ON THE FILES OF SUB COURT, KATTAPPANA.

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EXT. P3:TRUE PHOTOSTAT COPY OF OS NO 155/2008 ON THE FILES OF MUNSIFFS COURT, PEERUMEDU.

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EXT. P4:TRUE PHOTOSTAT COPY OF IA NO 1024/2014 IN OS NO 123/2012 ON THE FILES OF SUB COURT, KATTAPPANA.

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EXT. P5:TRUE PHOTOSTAT COPY OF IA NO 1023/2014 IN OS 123/2012 ON THE FILES OF SUB COURT.

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EXT. P6:TRUE PHOTOSTAT COPY OF THE JUDGMENT DTD 13/1/2015 IN OPC 2756/2014 PASSED BY THIS HON'BLE COURT.

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EXT. P7:TRUE PHOTOSTAT COPY OF THE ORDER DTD 18/3/2015 IN IA 1023/2014 IN OS NO 123/2012 ON THE FILES OF SUB COURT, KATTAPPANA.

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EXT. P8:TRUE PHOTOSTAT COPY OF THE ORDER DTD 18/3/2015 IN IA 1024/2014 IN OS NO 123/2012 ON THE FILES OF SUB COURT, KATTAPPANA.

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EXT. P9: TRUE PHOTOSTAT COPY OF CMA NO 77/2015 FILED BEFORE THE DISTRICT COURT, THODUPUZHA.

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EXT. P10:- TRUE PHOTOSTAT COPY OF IA 1036/2015 IN CMA NO 77/2015 FILED BEFORE DISTRICT COURT, THODUPUZHA.

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EXT. P11:- TRUE PHOTOSTAT COPY OF IA NO 1037/2015 IN CMA NO 77/2015 BEFORE DISTRICT COURT, THODUPUZHA.

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EXT. P12:- TRUE PHOTOSTAT COPY OF EA NO 188/2015 IN EP NO 38/2013 BEFORE THE SUB COURT, KATTAPPANA

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RESPONDENT(S)' EXHIBITS :

NIL.

/TRUE COPY/

P.A. TO JUDGE

rvs.

K.ABRAHAM MATHEW J.

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O.P.(C)No.2892 of 2015

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Dated this the 7^th day of January, 2016

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JUDGMENT

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Petitioner is the brother of the first respondent. The second respondent is the wife of the latter. The respondents have obtained a decree for recovery of possession of the plaint schedule property. Execution proceedings are pending. The petitioner has filed an application to set aside the decree under Order 9 Rule 13 of the Code of Civil Procedure along with an application to condone the delay in filing it. Both were dismissed. CMA is pending. The prayer in this Original Petition is to stay the execution of the decree till the disposal of the CMA.

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Heard the learned counsel for the petitioner and the respondents.

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Pursuant to the directions issued by this court the petitioner has already filed an undertaking in the form of an affidavit that if the C.M.Application filed by him happens to be dismissed he will hand over possession of the property within seven days. I think in these circumstances it is sufficient to issue a direction to the appellate court to dispose of the CMA within one month from the date of receipt or production of a copy of this judgment. Till then, the delivery shall not be effected.

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In the result, this Original Petition is disposed of with a direction to the District Judge to dispose of the C.M.A.No. 77 of

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O.P.(C)No.2892 of 2015 2

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2015 within one month from the date of receipt or production of a

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copy of this judgment. Till the disposal of the CMA, the delivery is stayed.

Sd/-

K.ABRAHAM MATHEW

JUDGE

cms

/True copy/ P.S.to Judge

P.K.Mohammed Basheer v. P.K.Zachariah

Case brief

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P.K.Mohammed Basheer v. P.K.Zachariah

Case brief

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