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 the respondent contended that the materials on record revealed that obstruction was caused to the way having width of ten feet immediately before institution of the suit, the first appellate court was satisfied of that and accordingly vacated the ex parte interim order of stay. It is also submitted by the learned counsel that on account of the obstruction caused to the way the respondent cannot take vehicles through the said way as before. The learned counsel however agreed that if the appeal could be disposed of within a short time, the decree for mandatory injunction would not be executed during the said time.