IMPORTANT POINTS
Granting stay of execution of an interim order passed in a suit till the disposal of that suit would amount to nullifying the order itself and it is not the object of the provision contained in Order XXI Rule 29 of the Code.

JUDGMENT :

The petitioner is the plaintiff and the respondent is the defendant in the suit O.S.No.165/2017 on the file of the Munsiff's Court, Kayamkulam.

2. The plaintiff is said to be suffering from bipolar disorder and the suit was instituted by his wife as his next friend.

3. The suit is instituted for granting a decree of declaration of title of the plaintiff over the plaint schedule property and also for granting a decree of prohibitory injunction restraining the defendant from alienating or making any alteration to the nature of that property.

4. The case of the plaintiff in the suit is, that the plaint schedule property belonged to him, that on 19.09.2016 he executed sale deed No.1033/2016 in respect of that property in favour of the defendant, that the aforesaid sale deed was signed by him without knowing its nature as he was suffering from mental illness, that the sale deed is not supported by consideration, that the sale deed is void and that the plaint schedule property is in his possession.

5. The defendant filed an application as I.A.No.1509/2017 in the suit for granting an order of interim mandatory injunction, directing the plaintiff to reconstruct the wall of the shop rooms in the building which was allegedly demolished by the plaintiff and to open the shutters of the shop rooms by removing the padlocks put in by the plaintiff from inside. This application was filed by the defendant alleging that he was in possession of the plaint schedule property after the execution of the sale deed and subsequent to the institution of the suit, the plaintiff demolished a portion of the wall of the shop rooms in the plaint schedule property and that he locked the shop rooms from inside with padlocks.

6. The trial court considered the application for interim mandatory injunction filed by the defendant together with the applications for interim injunction filed by the plaintiff. By a common order dated 19.03.2018, the trial court dismissed the applications filed by the plaintiff but allowed the application for interim mandatory injunction filed by the defendant. The trial court directed the plaintiff to reconstruct the western extremity of the wall on the southern side of the shop rooms bearing Nos.KMC II/139 F and KMC II/139 G in the plaint schedule property and to open the three padlocks used for locking the shutters of the said shop rooms from inside. In the event of failure of the plaintiff to comply with the order, the trial court also allowed the defendant to get the order executed through the process of the court.

7. The plaintiff filed appeals before the District Court challenging the aforesaid orders passed by the trial court. By a common judgment dated 07.12.2018, the District Court dismissed those appeals.

8. The defendant filed execution petition as E.P.No.2/2019 in the Munsiff's Court for executing the order of interim mandatory injunction passed against the plaintiff. The plaintiff filed objection to the execution petition contending that the order of interim mandatory injunction passed against him by the court is not executable as a decree and that the execution petition is not maintainable.

9. The plaintiff also filed Ext.P4 application (E.A.No. 25/2020) under Order XXI Rule 29 of the Code of Civil Procedure, 1908 (for short 'the Code') praying that the proceedings in the execution petition may be stayed till the disposal of the suit filed by him.

10. As per Ext.P6 order dated 16.06.2020, learned Munsiff found that the order of interim mandatory injunction passed against the plaintiff is executable and appointed an Advocate as commissioner to execute that order at the costs and expenses of the defendant. As per Ext.P7 order dated 16.06.2020, learned Munsiff also dismissed the application E.A.No.25/2020 filed by the plaintiff.

11. The plaintiff has filed this original petition under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P7 order.

12. Heard learned counsel for the petitioner