MURALEEDHARAN Vs. NARAYANA GUPTHAN

JUDGEMENT

(1.) Exhibit P7, order passed by the learned Sub Judge, Ottappalam on I.A. No.4459 of 2011 in A.S. No.112 of 2011 arising from the judgment and decree of the learned Munsiff, Ottappalam in O.S. No.264 of 2010 is under challenge in this Original Petition.

(2.) The respondent has obtained a decree for prohibitory and mandatory injunction concerning the disputed way in O.S. No.264 of 2010. The trial court found that petitioners caused some obstruction to the user of the disputed pathway. Accordingly a decree for mandatory injunction was granted for removal of the obstruction. Petitioners challenged that judgment and decree in A.S. No.112 of 2011 and obtained an ex parte interim order of stay of execution of the decree including the mandatory part of the decree. On the respondent appearing and preferring objection to the application for stay, the learned Sub Judge heard both sides and by Ext.P7, order vacated the ad interim, ex parte order of stay and dismissed I.A. No.4459 of 2011. The consequence is that the respondent is free to execute the decree for mandatory injunction for removal of obstruction allegedly caused to the disputed way.

(3.) The learned counsel for petitioners submitted that the dispute is concerning the width of the way - while according to the respondent it is ten feet, petitioners would say that its width is three feet. It is contended that the said question is yet to be resolved by the first appellate court while deciding A.S. No.112 of 2011 and if in the meantime the decree for mandatory injunction is executed, that would amount to enforcement of the decree even before correctness of the decree is decided by the first appellate court.