Disposed

T.K.Surendran v. Pankajakshi

Kerala HC9 Mar 2018OP(C)/659/2018

Case brief

AI extract

What is this about?

Original Petition challenging the dismissal of an execution petition was disposed of without adjudication. The court granted leave to file an application in an intervening review petition where the parties switch roles, noting procedural propriety dictated handling the status quo conflict there. All contentions left open.

What did the court decide?

Leave granted to file application in R.S.A.No.339/2017; Original Petition disposed of with all contentions left open.

T.K.Surendran Vs Pankajakshi — 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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FRIDAY, THE 9TH DAY OF MARCH 2018 / 18TH PHALGUNA, 1939

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OP(C).No. 659 of 2018

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E.A. NO. 126/2017 AND E.A. NO. 128/2017 IN E.P.NO. 31/2016 IN O.S.NO. 79/2013 OF THE MUNSIFF'S COURT, CHENGANNUR.

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PETITIONER:

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T.K.SURENDRAN, AGED 72 YEARS,S/O.LATE KUNJUPANICKAN,THEKKETHADATHINETHU SURENDRA BHAVAN,KODAYIKKADU MURI,CHERIYANADU VILLAGE, CHANGANNUR,PIN-670509.

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BY ADV.SRI.N.ASHOK KUMAR

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RESPONDENT(S):

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1. PANKAJAKSHI, AGED 72 YEARS,W/O.LATE GOPI,JAYANADHA BAHVANAM, KADAYIKKADU MURI,KOLLAKADAVU.PO,CHERIYANAD VILLAGE, CHENGANNUR,PIN-670509.

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2. JAYANDHAKUMAR,

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AGED 55 YEARS,S/O LATE GOPI,JAYANDHA BHAVANAM, KADAYIKKADU MURI,KOLLAKADAVU.PO,CHERIYANAD VILALGE, CHENGANNUR,PIN-670509.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PBS

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OP(C).No. 659 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT. P1 TRUE COPY OF COMMON JUDGMENT DATED 29.2.2016 IN O.S.79/2013 OF MUNSIFF'S COURT,CHENGANNUR. EXT.P2 TRUE COPY OF COMMON JUDGMENT DATED 25-3-2017 IN A.S.NO.23/2016 & A.S.24/2016 OF SUB COURT,CHENGANNUR. EXT.P3 TRUE COPY OF E.P.NO.31/2016 IN O.S.79/2013 DATED 6-6-2016 OF MUNSIFF COURT,CHENGANNUR EXT.P4 TRUE COPY OF PLAN DATED 25-9-2015 IN O.S.NO.79/2013. EXT.P5 TRUE COPY OF E.A.NO.126/2017 IN E.P.NO.31/2016 IN O.S.NO.79/2013 FILED BEFORE THE MUNSIFF COURT,CHENGANNUR. EXT.P6 TRUE COPY OF E.A.NO.128/2017 IN E.P.NO.31/2016 IN O.A.79/2013 FILED BEFORE THE MUNSIFF'S COURT,CHENGANNUR. EXT.P7 TRUE COPY OF COMMON ORDER DATED 18.1.2018 IN E.A.NO.126/2017 AND E.A.NO.128/2017 IN E.P.NO.31/2016 IN O.S.79/2013 OF MUNSIFF'S COURT,CHENGANNUR.

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RESPONDENT'S EXHIBIT NIL

/TRUE COPY/

PA TO JUDGE

PBS

20/3/2018

ALEXANDER THOMAS, J.

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O.P(C) No.659 of 2018

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Dated this the 9^th day of March, 2018

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J U D G M E N T

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The prayer in this Original Petition (Civil) is as follows:

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“..........pleased to stay Ext.P7 order and direct the Munsiff Court, Chengannur to proceed with Ext.P5 petition, pending disposal of the O.P(C).”

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Heard Sri.N.Asok Kumar, the learned counsel appearing for

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the petitioner. 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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The petitioner herein is the 1^st defendant/decree holder in O.S.No.79/2013 on the file of the Munsiff's Court, Chengannur, which is a suit for fixation of boundary separating the properties of the petitioner and the respondents herein. The said suit O.S.No.79/2013 was jointly tried along with O.S.No.143/2012 and O.S.No.152/2012 of the same court. O.S.No.143/2012 was filed by the 1^st respondent herein against the petitioner and O.S.No.152/2012 was filed by the petitioner herein against the respondents. The said O.S.No.143/2012 was filed seeking declaration of easement of way and injunction and the O.S.No.152/2012 was filed for injunction and damages. All the above three suits were tried jointly

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O.P(C) No.659 of 2018 :2:

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treating O.S.No.143/2012 as a leading case, it is stated. The said suits were finally disposed of as per common judgment dated 29.2.2016.

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Further it is stated that the judgment and decree in the present O.S.No.79/2013 is a consent decree and that the petitioner herein had filed execution petition before the Munsiff's Court, Chengannur. It is stated that the boundary line separating the property of the petitioner and the respondents is “JN'' line in Ext.C-6 plan appended to the decree in O.S.No.79/2013.

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The petitioner had filed Ext.P5 E.A.No.126/2017 in E.P. No.31/2016 in O.S.No.79/2013 to expedite the execution and to fix the boundary. The 1^st respondent herein had filed Ext.P6 E.A.No.128/2017 in E.P.No.31/2016 in O.S.No.79/2013 to stay the entire proceedings in E.P. No.31/2016 till the disposal of the Regular Second Appeals which have been filed to impugn judgments and decrees in O.S.No.143/2012 and O.S.No.152/2012.

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Further stated that R.S.A.No.339/2017 is now pending before this Court which arises out of A.S.No.23/2016 on the file of the Sub Court, Chengannur, which in turn arises out of the judgment and decree dated 29.2.2016 in O.S.No.143/2012 on the file of the Munsiff's Court, Chengannur. It is also pointed out that R.S.A.No.739/2017 is now

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O.P(C) No.659 of 2018 :3:

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pending before this Court which arises out of A.S.No.24/2016 on the file of the Sub Court, Chengannur which in turn arises of judgment and decree dated 29.2.2016 in O.S.No.152/2012 on the file of the Munsiff's Court, Chengannur.

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It is further stated that Ext.P6 E.A.No.128/2017 filed by the respondent herein has been allowed and Ext.P5 E.A.No.126/2017 filed by the petitioner herein has been dismissed as per the impugned Ext.P7 order dated 18.1.2018. It is this order under challenge in this Original Petition.

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A reading of impugned Ext.P7 order would make it clear that the court below has passed the impugned order on the premise that if the prayer of the petitioner is allowed as per Ext.P5 E.A.No.126/2017, then it would amount to violating and varying the interim status quo order passed by this Court in R.S.A.No.339/2017. It is mainly this finding that is under challenge in this Original Petition (C).

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Having heard the learned counsel appearing for the petitioner and having gone through the pleadings and materials on record, this Court is of the view that it may not be proper at this stage in an independent proceedings like the present petition, to consider the plea as to whether the prayer made by the petitioner in Ext.P5 E.A.No.126/2017 will have or will not have the effect of violating the interim status quo order passed by

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O.P(C) No.659 of 2018 :4:

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another Bench of this Court which is dealing with R.S.A.No.339/2017. The petitioner herein is the respondent in R.S.A. Nos.339/2017 and 739/2017 whereas the 1^st respondent herein is the appellant in those R.S.As. Instead of instituting an independent proceedings like the present Original Petition, this Court feel that the said plea should have been made by the petitioner in R.S.A.No.339/2017 to which the petitioner and the 1^st respondent are the parties. In the light of these aspects Sri.N.Asok Kumar, the learned counsel appearing for the petitioner seeks leave of this Court to file an appropriate application in R.S.A.No.339/2017 for clarification of the orders from this Court that proceeding further with E.P.No.31/2016 arising out of O.S.No.79/2013, will not in any manner violate and vary the interim status quo order already passed by this Court in R.S.A.No.339/2017. Leave is so granted.

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In view these aspects all the contentions of the petitioner are left open and the Original Petition (Civil) will stand disposed of.

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Sd/-

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ALEXANDER THOMAS JUDGE

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ab.

T.K.Surendran v. Pankajakshi

Case brief

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T.K.Surendran v. Pankajakshi

Case brief

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