IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 14^TH DAY OF MARCH 2022 / 23RD PHALGUNA, 1943 OP(C) NO. 512 OF 2022 AGAINST THE ORDER/JUDGMENT IN AS 9/2021 OF HON'BLE SUB COURT, KOCHI PETITIONER/APPELLANT/DEFENDENT NO.1:

S.RAMESH KAMATH, AGED 61 YEARS S/O. SREEDHARA KAMATH, RESIDING AT CC NO. 08/533 (OLD NO.

8/160), OPPOSITE OF TD HIGH SCHOOL, MATTANCHERRY, KOCHI 682 002.

BY ADVS.

N.SATHEESH S.ARAVIND K.JANARDHANA SHENOY ARUN ANTONY (K/1053/2011)

RESPONDENTS/PLAINTIFFS/DEFENDENT NO.2/LRS OF DEFENDENT NO.3:

1 M.V.THOMAS, AGED 80 YEARS S/O. VAREETHU, RESIDING AT C.C. 8/530, OPPOSITE OF TD HIGH SCHOOL, MATTANCHERY, KOCHI-682 002

2 K H ABDUL AZZEZ, AGED 56 YEARS S/O. K HAMSA, RESIDING AT C.C. 8/530, OPPOSITE OF TD HIGH SCHOOL, MATTANCHERRY, KOCHI 682 002.

3 K.P. SASIKUMAR, AGED 62 YEARS S/O. P.K. PANKAJAKSHAN NAIR, RESIDING AT C.C. NO. 8/530, OPPOSITE OF TD HIGH SCHOOL, MATTANCHERRY, KOCHI 682 002. 4 SRISANTHAN HALDIPUR SRIKRISHNA MUTT, AGED 60 YEARS NORTH CANARA, HONAVAR, REPRESENTED BY ITS PRESIDENT, T.

VIDYASAGAR, REPRESENTED BY ITS PRESIDENT , C.C. NO. 10/530, AMARAVATHY, KOCHI 682 001.

5 UMESH, S/O. GOPALAN, H. NO. 08/533, OPPOSITE OF TD HIGH SCHOOL, MATTANCHERRY, KOCHI 682 002.

6 ULLAS, S/O. GOPALAN, H. NO. 08/533, OPPOSITE OF TD HIGH SCHOOL, MATTANCHERRY, KOCHI 682 002.

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 14^th day of March, 2022 This Original Petition has been filed under Article 227 of the Constitution of India.

2. In this case, the petitioner who is the appellant in A.S No.9/2021 and 1^st defendant in O.S No.266/2011 on the file of the Munsiff's Court, Kochi seeks the following reliefs:- i. “To direct the Sub Court, Kochi to hear and pass orders in Exhibit P2 and P3 at the earliest.

ii. To stay all further proceedings in EP No.38/2021 pending before Hon'ble Munsiff Court, Kochi pending disposal of Exhibit P2 and P3 before the Hon'ble Sub Court, Kochi, iii. To issue any other order or direction appropriate in the circumstances of the case.”

3. Heard the learned counsel for the petitioner on admission.

4. Considering the minimum prayer, notice to other side is dispensed with. Here after passing the decree, the petitioner herein filed appeal within time and a stay petition, which are pending as Exts.P2 and P3. Now, the execution court is proceeding with the execution of the decree since no order of stay has been passed in the stay petition in a case where appeal has been preferred within the statutory period of limitation.

5. In view of the matter, the Original Petition is allowed with a direction to the appellate court to consider Exts.P2 and P3 at the earliest and pass orders in the stay petition or else dispose of the appeal, within a period of three months. Since the petitioner filed appeal within a time, execution of the decree without hearing the appeal cannot be justified and therefore, the execution stands stayed for a period of three months from today and not thereafter.

The Registry shall forward a copy of this judgment to the court below concerned, within seven days, for information and compliance.

Sd/-

A. BADHARUDEEN JUDGE spk APPENDIX OF OP(C) 512/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF EP NO. 38/2021 FILED BY RESPONDENTS PENDING BEFORE THE HON'BLE MUNSIFF COURT, KOCHI.

Exhibit P2 A TRUE COPY OF AS NO. 09/2021 PENDING BEFORE THE HON'BLE SUB COURT, KOCHI FILED BY THE PETITIONER.

Exhibit P3 A TRUE COPY OF I.A. NO. 02/2022 IN AS NO.

9/2021 BEFORE THE HON'BLE SUB COURT, KOCHI.

RESPONDENT'S EXHIBITS : NIL