Disposed

Harikumar v. Mihija

Kerala HC19 Feb 2018OP(C)/461/2018

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a civil original petition seeking a stay on execution of a decree. The court declined to examine the merits of the dispute, noting the connected appeal is pending, but directed the status quo of the subject pathway be maintained until the appellate petition is disposed of.

What did the court decide?

Status quo maintained regarding C schedule pathway until disposal of C.M.A. 1 of 2018.

Harikumar Vs Mihija — Property and Title | 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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MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939

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OP(C).No. 461 of 2018

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CMA 1/2018 of SUB COURT, NEDUMANGAD

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PETITIONER(S)/PETITIONERS

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1 HARIKUMAR, S/O. SANKARA PILLAI, AGED 46, S.S. BHAVAN, NEAR VAMANAPURAM BLOCK OFFICE, AYILOORKONAM, MANICKAL MURI, NELLANAD VILLAGE.

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2 SUSEELA, D/O. CHATHA, AGED 85, AYILOORKOINATHU PUTHEN VEEDU, THANDARAM POIKA, VENJARAMOODU, MANICKAL MURI, NELLANAD VILLAGE.

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BY ADVS.SRI.VINOD RAVINDRANATH SRI.SAJU.S.A SMT.MEENA.A. SMT.M.R.MINI SRI.VINAY MATHEW JOSEPH SRI.ASHWIN SATHYANATH

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RESPONDENT(S)/COUNTER PETITIONER:

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MIHIJA, D/O. ARIFA BEEVI, RIJA VILLA, VAMANAPURAM, NEAR VAMANAPURAM BLOCK, PANCHAYATH OFFICE, VENJARAMOODU, NELLANAD VILLAGE, PIN- 695 606.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 461 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT-P1 TRUE COPY OF THE PLAINT DATED 09/11/2017 IN O.S 816/2017 ON THE FILES OF THE COURT OF MUNSIFF COURT, NEDUMANGAD EXHIBIT-P2 TRUE COPY OF THE JUDGMENT DATED 12/08/2011 IN O.S 62/2009 ON THE FILES OF THE ADDITIONAL MUNSIFF, NEDUMANGAD EXHIBIT-P3 TRUE COPY OF THE ORDER DATED 01/12/2017 PASSED IN I.A 4463/2017 IN O.S 816/2017 ON THE FILES OF THE COURT OF THE ADDITIONAL MUNSIFF EXHIBIT-P4 TRUE COPY OF THE I.A 9/2018 DATED 06/01/2018 IN C.M.A 1/2018 ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, NEDUMANGAD EXHIBIT-P5 TRUE COPY OF THE ORDER DATED 23/01/2018 IN I.A 9/2018 IN C.M.A 1/2018 ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, NEDUMANGAD

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RESPONDENT'S EXHIBITS: NIL

TRUE COPY

PA TO JUDGE

Scl.

ALEXANDER THOMAS, J.

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O.P.(C) No.461 of 2018

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Dated this the 19^th day of February, 2018

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JUDGMENT

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The petitioners herein are the plaintiffs in Ext.P1 O.S.No.816 of 2017 on the file of Additional Munsiff's Court, Nedumangad in which the respondent herein is the sole defendant therein. The suit is for injunction to restrain the respondent herein from executing the decree in O.S.No.62 of 2009 on the file of the Additional Munsiff's Court, Nedumangad, in which the respondent herein has been arrayed as the first defendant therein. The suit is for injunction to restrain the respondent herein from executing the decree in O.S.No.62/2009 on the file of the Additional Munsiff's Court, Nedumangad and also from causing any obstruction to the use of plaint C schedule pathway. It is the case of the petitioners that without making the petitioners herein as parties, the respondent herein had obtained Ext.P2 judgment and decree dated 12.8.2011 in O.S.No.62 of 2009 for putting up boundary and thereby closing 'C' schedule pathway. In Ext.P1 O.S.No.816 of 2017, the petitioners had filed Ext.P3 I.A.No.4463 of 2017 praying for interim

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O.P.(C) No.461 of 2018

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order of injunction to restrain the first defendant from executing the decree in O.S.No.62 of 2009. By the impugned Ext.P3 order dated 1.12.2017, the trial court had dismissed I.A.No.4463 of 2017. Being aggrieved thereby, the petitioners had challenged Ext.P3 order by filing C.M.A No.1 of 2018 before the Court of the Subordinate Judge, Nedumangad. The petitioners had also filed Ext.P4 application in C.M.A.No.1 of 2018 praying for temporary injunction to restrain the respondent from executing O.S.No.62 of 2009 pending disposal of the appeal. But, it is contended that without considering the matter in proper prospective, the lower appellate court also dismissed Ext.P4 interlocutory application by impugned Ext.P5 order. These orders as Exts.P4 and P5 are under challenge in this Original Petition (Civil).

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Heard Smt.A.Meena, learned counsel appearing for the petitioners. In the nature of the orders proposed to be passed in this petition, notice to the respondent will stand dispensed with.

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Learned counsel appearing for the petitioners had made several contentions and prayers in this O.P.(C). It is also contended by the petitioners that the finding made by the trial court in paragraph 11 at page 8 of Ext.P3 order that the commissioner has reported that there is no heavy usage of the way etc. is factually incorrect in as much as Ext.C1

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O.P.(C) No.461 of 2018

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commission report would disclose that no such findings has been made by the commissioner to that effect in that report. Having regard to the fact that the impugned Ext.P5 order is only the rejection of an interlocutory application in a pending civil miscellaneous appeal, this Court is not inclined to consider the merits of the rival submissions in this matter. It is brought to the notice of this Court that C.M.A. 1 of 2018 is still pending consideration before the Court of the Subordinate Judge, Nedumangad. For the limited purpose of preservation of the subject matter of the lis, it is ordered that status quo will be maintained as regards C schedule pathway until the disposal of C.M.A.1 of 2018. The Court of the Subordinate Judge, Nedumangad will take steps to ensure that C.M.A.No.1 of 2018 is finally disposed of without much delay, preferably within a period of one month from the date of production of a certified copy of this judgment. The above said direction to maintain status quo has been rendered by this Court is only for the limited purpose of preservation of the subject matter of the lis and shall not be construed as an expression on the part of this Court, regarding the merits of the controversy. The petitioners will produce a certified copy of this judgment before the trial court and the lower appellate court for necessary information.

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O.P.(C) No.461 of 2018

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With these observations and directions, the above Original

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Petition (Civil) stands finally disposed of.

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ALEXANDER THOMAS, JUDGE

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Scl/19.02.2018

Harikumar v. Mihija

Case brief

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Harikumar v. Mihija

Case brief

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