Disposed¶36

Gasal Sabijan v. Prabhavathy

Kerala HC3 Apr 2025OP(C)/943/2025

Case brief

AI extract

What is this about?

Kerala High Court, Ernakulam; OP(C) 943/2025; Justice Basant Balaji; 03-04-2025. Keywords: Article 227 Constitution of India supervisory jurisdiction; direction to subordinate appellate court to dispose of pending interlocutory application; stay of delivery in execution; Order XXI Rule 97, 99 and 101 CPC objector application dismissed; IA No.1/2025 stay application pending in AS No.12/2025; EP No.9/2024 in O.S. No.64/2020; counterclaim decree - vacant possession of shop room within 30 days and arrears of rent Rs.23,400/-; appellate court bound to consider pending application; expeditious disposal of stay application before delivery; Original Petition disposed.

What did the court decide?

Direction to the Sub Court, Attingal to dispose of IA No.1 of 2025 in AS No.12 of 2025 as expeditiously as possible; Original Petition disposed of accordingly.

Gasal Sabijan Vs Prabhavathy — Writ and Judicial Review | Kerala HC (2025)

What the court decided

AI extract

Outcome

Direction to the Sub Court, Attingal to dispose of IA No.1 of 2025 in AS No.12 of 2025 as expeditiously as possible; Original Petition disposed of accordingly.

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Issue for consideration

Whether the Sub Court, Attingal (appellate court in AS No.12 of 2025) should be directed to consider and dispose of the pending stay application IA No.1 of 2025 before delivery is ordered pursuant to the decree, and whether the High Court under Article 227 should issue such a direction notwithstanding the petitioner's inability to insist on a stay of delivery meanwhile.

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Court's answer

Invoking its supervisory jurisdiction under Article 227 of the Constitution of India, the High Court has only to see that lower courts strictly comply with the procedures in law; accordingly, the petitioner cannot contend that the application Ext.P5 is not considered and thereby seek to stay the delivery till such time.

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Ratio / Principle

When an application is pending before it, the appellate court is bound to consider the same and pass orders.

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Key takeaways

There will be a direction to the Sub Court, Attingal to dispose of IA No.1 of 2025 in AS No.12 of 2025 as expeditiously as possible.ratio¶35

Detailed headnote1 paragraphs

OP(C) No.943 of 2025 - High Court of Kerala at Ernakulam (Basant Balaji J.), decided 03-04-2025. The petitioner, appellant in AS No.12 of 2025 (Sub Court, Attingal) challenging the decree whereby the suit (O.S. No.64/2020) was dismissed and the counterclaim allowed (vacant possession of the counterclaim scheduled shop room within 30 days; Rs.23,400/- arrears of rent to the counterclaim plaintiff), had failed in EA No.5 of 2024 in EP No.9 of 2024 under Order XXI Rule 97, 99 and 101 CPC (dismissed 15.03.2025, Ext.P3), and had filed IA No.1 of 2025 (Ext.P5, filed 24.03.2025) in the appeal to stay the operation of the judgment and decree. Grievance: the stay application was not being considered though delivery was in prospect. HELD: invoking Article 227 of the Constitution of India, the High Court has only to see that lower courts strictly comply with the procedures in law; the petitioner cannot contend that Ext.P5 remains unconsidered and insist on a stay of delivery till then; however, when an application is pending, the appellate court is bound to consider it and pass orders. Direction issued to the Sub Court, Attingal to dispose of IA No.1 of 2025 in AS No.12 of 2025 as expeditiously as possible; Original Petition disposed of.

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OP(C) NO. 943 OF 2025

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2025:KER:29242

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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 BASANT BALAJI

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THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947

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OP(C) NO. 943 OF 2025

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AGAINST THE ORDER/JUDGMENT IN AS NO.12 OF 2025 OF
ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL
COURT,ATTINGAL ARISING OUT OF THE ORDER/JUDGMENT DATED IN EP
NO.9 OF 2024 OF MUNSIFF COURT,VARKALA

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PETITIONER:

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GASAL SABIJAN
AGED 32 YEARS

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S/O SABIJAN, KULANGARA HOUSE, KAYALPURAM DESOM,
AYIROOR VILLAGE, VARKALA, PIN - 695310

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BY ADVS.
V.V.SURESH
M.L.SURESH KUMAR

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RESPONDENTS:

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1 PRABHAVATHY AGED 69 YEARS

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W/O KOMALAN, KIZHAKKEVILA VEEDU, VENKULAM DESOM,
EDAVA, VARKALA CURRENTLY RESIDING AT CRYON VILLA,
CLARANS STREET M 24 DW, ENGLAND, PIN - 695311

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2 SHERIN

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D/O KOMALAM SOBHANA, KIZHAKKEVILA VEEDU, VENKULAM
DESOM, EDAVA, VARKALA CURRENTLY RESIDING AT CRYON
VILLA, CLARANS STREET M 24 DW, ENGLAND, PIN - 695311

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3 SUNIL S/O KOMALAN SOBHANA, KIZHAKKEVILA VEEDU, VENKULAM DESOM, EDAVA, VARKALA CURRENTLY RESIDING AT CRO 11 D,

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OP(C) NO. 943 OF 2025

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2025:KER:29242
99 GEORGE STREET, CROYDON, MARGARET AVENUE, ENGLAND,
PIN - 695311

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4 SEETHA SANTHOSH W/O SANTHOSH, NEDIYAVILA VEEDU, KARUNILAKKODU DESOM, VARAKALA, PIN - 695141

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 943 OF 2025

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2025:KER:29242

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JUDGMENT

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Dated this the 3^rd day of April, 2025

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The petitioner is the appellant in AS No.12 of 2025 on the files of the Sub Court, Attingal. The suit was dismissed, and the counterclaim was allowed as per decree. The counterclaim defendant was directed to hand over the vacant possession of the counterclaim scheduled shop room within 30 days of the judgment and also the counterclaim plaintiff was entitled to arrears of rent of Rs.23,400/-. The petitioner herein challenged the decree in AS No.12 of 2025 and IA No.1 of 2025, is filed to stay the operation of judgment and decree passed. The petitioner also filed EA No.5 of 2024 in E.P No.9 of 2024 under

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Order XXI Rule 97, 99 and 101 CPC. The said application was dismissed on 15.03.2025.

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The order in Ext.P3 is challenged in appeal A.S.No.12 of 2025 and moved a stay as IA No.1 of 2025. The grievance of the petitioner is that the said application is not considered and prays that a direction be issued for consideration of the IA No.1 of 2025, before delivery is ordered.

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OP(C) NO. 943 OF 2025

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2025:KER:29242 3. It is submitted by the learned counsel for the petitioner that against the decree, an appeal was filed, the same also dismissed. It is seen that Ext.P5 application was filed only on 24.03.2025 and the petitioner seeks disposal of the same. This Court, invoking jurisdiction under Article 227 of the Constitution of India ,has only to see that lower courts strictly comply with the procedures in law. The petitioner cannot contend that the application Ext.P5 is not considered and stay the delivery till such time. At the same time, when an application is pending, the appellate court is bound to consider the same and pass orders. Therefore, there will be a direction to the Sub Court, Attingal to dispose of IA No.1 of 2025 in AS No.12 of 2025 as expeditiously as possible.

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The Original Petition is disposed of as above.

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 Sd/-

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BASANT BALAJI JUDGE

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saap

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OP(C) NO. 943 OF 2025

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2025:KER:29242

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APPENDIX OF OP(C) 943/2025

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PETITIONER EXHIBITS

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Exhibit P1TRUE COPY OF THE E P NO .9/2024 IN O S NO
64/2020 DATED 29-02-2024
Exhibit P2TRUE COPY OF THE E A NO. 5/2024 IN E P NO
9/2024 DATED 17-08-2024
Exhibit P3TRUE COPY OF THE ORDER IN E A NO 5/2024 IN
E P NO.9/2024 IN O S NO 64/2020 DATED 15-
03-2025
Exhibit P4TRUE COPY OF THE A S NO 12/2025 DATED 24-
03-2025 BEFORE THE LEARNED SUB COURT
ATTINGAL
Exhibit P5TRUE COPY OF THE I A NO 1/ 2025 IN A S
12/2025 DATED 24-03-2025

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//True copy//PA to Judge

Gasal Sabijan v. Prabhavathy

Case brief

What is this about?

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Gasal Sabijan v. Prabhavathy

Case brief

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