PAINKUTTIKANDY SHAJI Vs. PAINKUTTIKANDY PRASAD

JUDGEMENT

(1.) The petitioner is the defendant in O.S. No.167 of 2013, on the files of the Munsiff's Court, Kuthuparamba as well as appellant in A.S. No.33 of 2015, on the files of Additional Sub Court, Thalassery. The above suit was filed by the respondent herein, seeking an injunction, restraining the petitioner from causing obstruction to the respondent from entering into the plaint schedule shop room and from conducting the business as partner. The suit was decreed, as prayed for and now the decree and judgment stand challenged in appeal. Along with the appeal, the petitioner submitted an application under Order XLI Rule 5 of the Code of Civil Procedure, 1908 to stay the operation of decree and judgment challenged in the appeal. But the court below dismissed the said application, by Ext.P4. The legality and correctness of Ext.P4 are under challenge in this Original Petition.

(2.) Heard the learned counsel for the petitioner.

(3.) The sum and substance of the arguments advanced by the learned counsel for the petitioner is that while considering Ext.P3 application for stay, the appellate court went wrong in considering the scope of appeal and possibility of reversing or interfering with the judgment and decree. The court below lost sight of the fact that even in a case of partnership business, mere entry of the partner in the place of business would not render any assistance to him for establishing his legal rights because partners can do business as a partnership only when there is a mutual faith between the partners. Thus, the court below failed to consider the fact that the decree sought as such is unworkable and the balance of convenience is also in favour of the petitioner.