SIDHIYK Vs. ABDUL AZEEZ

JUDGEMENT

(1.) THE petitioners are the defendants in O.S.No.22 of 2010 on the file of the Court of the Subordinate Judge of Thiruvalla. THE suit was filed by the respondents for permanent prohibitory injunction restraining the first defendant from permitting the second defendant to function as a Imam of Niranam Muslim Deenar Palli Jama At. It is stated that in May, 2010 an interim injunction was granted. THE learned counsel for the defendants submitted that the second defendant tendered resignation in December, 2010. However, the general body refused to accept the resignation of the second defendant and asked him to continue. It is also stated that the interim order of injunction was being honored all throughout. Interim injunction was thereafter made absolute. Though the defendants filed an appeal against the order of temporary injunction, the appeal was dismissed by the District Court.

(2.) THE learned counsel for the petitioners/defendants submitted that on 24.1.2011 the counsel appearing for the defendants reported no instructions in the trial court. On 27.1.2011 an ex parte decree was passed against the defendants. On the same date, namely, 27.1.2011, I.A.No.1249 of 2010 filed by the plaintiff under Rule 2A of Order XXXIX of the Code of Civil Procedure was allowed ex parte and the court below directed the respondents in the application to be detained in civil prison. THE petitioners/defendants filed a C.M.Appeal before the District Court, Pathanamthitta challenging the order in I.A.No.1249 of 2010. However, since there was delay in filing the appeal, the appeal was not numbered. I.A.No.213 of 2011 is the application filed by the petitioners herein for condoning the delay of 25 days in filing the C.M.Appeal. It is stated that I.A.No.213 of 2011 in the C.M.Appeal is not disposed of. It is also stated that a petition for stay was also filed in the C.M.Appeal. However, the stay petition could not be taken up since the delay was not condoned.

(3.) THE defendants have filed C.M.Appeal challenging the order in I.A.No.1249 of 2010. THEre is a delay of 25 days in filing the appeal. THEy have also filed a stay petition to stay the order in I.A.No.1249 of 2010. THE stay petition could not be taken up since the delay is not condoned. At the same time, the petitioners are about to be detained in civil prison. Unlike interference in the case of delivery or execution of the decree in respect of immovable property, this is a matter affecting the personal liberty of individuals. Though strictly speaking, the Original Petition need not be entertained, the fact remains that if it is not entertained, the petitioners would be imprisoned in civil jail. If ultimately their appeal is allowed, the petitioners would not be placed in the same position which they occupied before the order of detention. In other words, the mischief already caused to them cannot be repaired by restitution.