Disposed

Usha Kumari.S v. Sankara Narayanan Nair

Kerala HC2 Feb 2018OP(C)/225/2018

Case brief

AI extract

What is this about?

The Court directed the District Court, Pathanamthitta to expedite pending applications for delay condonation and stay of execution. It ordered a stay on execution proceedings in the lower court to preserve the lis pending appeal disposal.

What did the court decide?

Directed District Court to decide IA.Nos.47/2018 and 48/2018 within two months; stayed execution proceedings in EP.No.105/2017 pending appeal disposal.

Usha Kumari.S Vs Sankara Narayanan Nair — Civil Procedure and Limitation | Kerala HC (2018)

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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 ALEXANDER THOMAS

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FRIDAY, THE 2ND DAY OF FEBRUARY 2018 / 13TH MAGHA, 1939

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OP(C).No. 225 of 2018

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OS 299/1988 of MUSNIFF COURT,ADOOR

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PETITIONER(S)/APPELLANTS/LEGAL REPRESENTATIVES OF PLAINTIFF NO.2:

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1 USHA KUMARI.S, AGED 48 YEARS,D/O.LATE G.SUKUMARAN NAIR, KIZHAKKE THOTTASSERY HOUSE,KOMANA,AMBALAPUZHA, NOW RESIDING AT VALIYAVEETTIL,PURANATTUKARA, THRISSUR.

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2 BEENAKUMARI.S, AGED 46 YEARS,D/O.LATE G.SUKUMARAN NAIR,KIZHAKKE THOTTASSERY HOUSE,KOMANA,AMBALAPUZHA, NOW RESIDING AT SREERAGAM, PLRA-24, PANACHAMOODU LANE, PATTOM, THIRUVANANTHAPURAM

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BY ADVS.SRI.S.SANAL KUMAR

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SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA

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RESPONDENT(S)/DEFENDANTS:

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1. SANKARA NARAYANAN NAIR, THOTTATHIL VEEDU,MALLAMKUZHA,KALANJOOR MURI, KALANJOOR VILLAGE,PATHANAMTHITTA DISTRICT-689694.

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2. LALITHAMMA, D/O.CHELLAMMA,THOTTATHIL VEEDU,MALLAMKUZHA, FROM CHEMPAKASSERIL VEEDU,KIZHAKKEKARA MURI, KOTTARAKKARA VILLAGE,KOLLAM DISTRICT-691506.

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3. GOPALAKRISHNAN NAIR, AJITHALAYAM,MANNADI KIZHAKKU,KALAYIKKUM KIZHAKKE MURI,KADAMPANADU VILLAGE,PATHANAMTHITTA DISTRICT-691523.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PBS

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OP(C).No. 225 of 2018 (O)

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APPENDIX

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PETITIONER(S)'	EXHIBITS
EXHIBIT P1	TRUE DATED	COPY OF THE COMMISSION REPORT WITH PLAN 27.09.2011
EXHIBIT P2	TRUE COURT	COPY OF THE JUDGMENT OF THIS HON'BLE IN O.P.(C)NO.2152/2014 DATED 24.03.2017
EXHIBIT P3	TRUE COURT	COPY OF THE JUDGMENT OF THIS HON'BLE IN O.P.(C)NO.3236/2017 DATED 16.11.2017
EXHIBIT P4	TRUE R.P.N	COPY OF THE ORDER OF THIS HON'BLE COURT IN O.907/2017 DATED 10.01.2018
EXHIBIT P5	TRUE PETIT COURT	COPY OF THE A.S.NO.10/2018 FILED BY THE IONERS BEFORE THE DISTRICT ,PATHANAMTHITTA DATED 19.01.2018.
EXHIBIT P6	TRUE FILED COURT	COPY OF THE A.S.NO.47/2018 IN A.S.NO. 10/2018 BY THE PETITIONERS BEFORE THE DISTRICT ,PATHANAMTHITTA DATED 19.01.2018.
EXHIBIT P7	TRUE FILED COURT	COPY OF THE I.A.NO.48/2018 IN A.S.NO.10/2018 BY THE PETITIONERS BEFORE THE DISTRICT ,PATHANAMTHITTA DATED 19.01.2018.

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RESPONDENT'S EXHIBIT NIL

/TRUE COPY/

PA TO JUDGE

PBS

ALEXANDER THOMAS, J.

O.P(C).No.225 Of 2018

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Dated this the 2nd day of February, 2018.

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The main prayers in this Original Petition (Civil) filed under the

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enabling provisions in Article 227 of the Constitution of India are as follows:

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“i. Issue a direction to the District Court, Pathanamthitta to dispose of I.A.Nos.47/2018 and 48/2018 in A.S.No.10/2018 within such time as this Hon'ble Court deems fit in the circumstances of the case;

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ii. Issue a direction to the Munsiff Court, Adoor forbearing it from proceedings with the execution of the decree in O.S.No.299/1988 till the disposal of the appeal.”

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Heard Sri.S.Sanal Kumar, learned counsel appearing for the

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petitioners. In the nature of the orders proposed to be passed in this petition, notice to the respondents will stand dispensed with.

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Earlier, while considering this case, this Court has passed

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order dated 25.1.2018, directing the District Court, Pathanamthitta, to furnish a report before this Court regarding certain aspects and the said order reads as follows:

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“The Registry to get a report from the District Court, Pathanamthitta, as to whether Ext.P-5 A.S.No.10/2018 said to have been filed by the petitioner (to impugn the final decree dated 30.1.2014 in O.S.No.299/1988 on the file of the Munsiff's Court, Adoor) as well as Ext.P-6 delay condonation

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::2::

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O.P(C).No.225 Of 2018

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application filed as I.A.No.47/2018 and Ext.P-7 application for stay filed as I.A.No.48/2018 in that A.S. are still pending consideration and as to the presetn stage of the I.As and as to whether notices have been served on the respondents in these I.As. and the minimum reasonable time required for disposal of Exts.P-6 and P-7 delay condonation application and stay application.

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Report in this regard should be furnished by the District Court, Pathanamthitta, within four days, by e-mail attachment and fax. .......................”

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4. Now, the District Court, Pathanamthitta, has furnished a

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report dated 31.1.2018 to the Registry of this Court stating that A.S.No.10/2018 was filed before that court with an application (I.A.No.47/2018) to condone the delay of 1421 days that occurred in filing the said Appeal Suit. I.A.No.48/2018 has also been filed along with the Appeal Suit seeking stay of the execution proceedings in E.P.No.105/2017 in O.S.No.299/1988 on the file of the Munsiff's Court, Adoor. The Appeal Suit was filed challenging the final decree passed in I.A.No.2076/2005 in O.S.No.299/1988 on the file of the Munsiff's Court, Adoor. That I.A.No.47/2018 (delay condonation application) was moved before the said court on 22.1.2018 and the said court issued notice to the respondents and the matter now stands posted for return of notice to 20.2.2018 and that the delay condonation as well as the stay application could be disposed of within 2 months after effecting service of notice on the respondents in the delay condonation application, etc.

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::3::

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O.P(C).No.225 Of 2018

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Accordingly, it is ordered in the interest of justice that the District Court, Pathanamthitta will take up for consideration Ext.P-6 delay condonation application (I.A.No.47/2018 in A.S.No.10/2018) as well as Ext.P-7 stay application (I.A.No.48/2018 in A.S.No.10/2018) without any further delay and after hearing both sides will pass orders on the delay condonation application and depending on the outcome of the orders passed in the delay condonation application, necessary orders are passed in the stay application without much delay, preferably within a period of one month from the date of completion of service of notice on the respondents in that I.A or at any rate within 2 months time limit as suggested by the lower appellate court.

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Sri.S.Sanal Kumar, learned counsel for the petitioners, submits that in the nature of the detailed facts and circumstances narated in the Original Petition, petitioners are entitled to seek the benefit of time exclusion under Sec.14 of the Limitation Act while considering Ext.P-6 delay condonation application in respect of the period spent by the petitioners' predecessors-in-interest for prosecuting Ext.P-2 Original Petition O.P.(C).No.2152/2014 and Ext.P-4 R.P.No.907/2017 [arising out of the judgment in O.P(C).No.2152/2014] before this Court. It is pointed out by the peititoner that

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O.P(C).No.225 Of 2018

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O.P(C).No.2152/2014 was filed as early as on 20.9.2014 on which this Court has rendred Ext.P-2 judgment dated 24.3.2017. Further that,

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after the death of the petitioners' predecessor-in-interest, Sri.Sukumaran Nair, the petitioners had filed R.P.No.907/2017 arising out of O.P.(C).No.2152/2014 as early as on 19.9.2017 on which Ext.P-4 final order was passed on 10.1.2018 disposing of that R.P granting liberty to the petitioners to file appeal to challenge the final decree proceedings. This Court called for the original papers of the O.P(C).No.2152/2014 and R.P.No.907/2017. It is seen that O.P(C).No.2152/2014 was filed on 20.9.2014 and further that R.P.No.907/2017 arising out of O.P(C).No.2152/2014, has been filed by the petitioners on 19.9.2017. The petitioners would also contend that the 2nd petitioner herein had actively participated in the mediation proceedings conducted at the behest of this Court in the above said R.P. and it was without notice to the petitioners, she had filed Ext.P-3 O.P.No.3236/2017, wherein she had secured an order for expeditious disposal of the final decree proceedings as per Ext.P-4 order dated 16.11.2017, etc. It is for the petitioners to urge these contentions and grounds before the appellate court while considering the delay condonation application more particularly, based on Sec.14 of the

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::5::

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O.P(C).No.225 Of 2018

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Limitation Act, for which the petitioners have to file a detailed additional affidavit in support of their application for Ext.P-6 delay condonation application and it is for the said court to consider those contentions and take a decision thereon after hearing both sides. Further it is ordered that until orders are passed by the lower appellate court on the above said Exts.P-6 & P-7 interlocutory applications, further proceedings in E.P.No.105/2017 in I.A.No.2076/2005 in O.S.No.299/1988 on the file of the Munsiff's Court, Adoor, will stand deferred. It is made clear that the above said direction was issued only for preservation of the subject matter of the lis and the court below shall not take it as an expression of opinion regarding the merits of the controversy, which are fully within the domain and province of the court below concerned. The petitioners will produce a certified copy of this judgmenet before the Execution Court as well as the lower appellate court concerned for necessary information.

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With these observations and directions, the aforecaptioned Original Petition (Civil) stands finally disposed of.

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Sd/-

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ALEXANDER THOMAS, Judge.

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Bkn/-

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// True copy // P. A to Judge.

Usha Kumari.S v. Sankara Narayanan Nair

Case brief

What is this about?

What did the court decide?

Usha Kumari.S v. Sankara Narayanan Nair

Case brief

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