K P ANTONY Vs. FLORY XAVIER

JUDGEMENT

(1.) The writ petition is filed seeking the following relief:

(2.) Petitioner is the plaintiff in Original Suit No. 244/05 on the file of the Principal Munsiff Court, Kochi. Suit was one for partition. Respondent was the defendant in that suit. In the suit, the respondent raised a counter claim in her written statement. After trial, the suit was dismissed and a decree upholding counter claim was granted. Against the dismissal of the suit, the petitioner / plaintiff preferred an appeal as AS No. 51/07 before the Sub Court, Kochi. The respondent / defendant moved for execution of the decree granting the counter claim raised in the suit. The writ petition has been filed by the petitioner / plaintiff invoking the supervisory jurisdiction of this Court under Art.227 of the Constitution of India for the aforementioned relief mainly seeking a stay of the execution proceedings taken before the execution Court for executing the decree granted under the counter claim.

(3.) From the submissions made at the time of hearing and also from the facts and circumstances presented with reference to the materials produced, I find the petitioner had approached the Court in which his appeal is pending for stay of execution of the decree granted in favour of the respondent / defendant but it was declined. He has preferred an appeal belatedly against the decree granting the counter claim, is the submission of the learned counsel for the respondent. It is further submitted that no order has been granted in that appeal also to stay the execution of the decree impugned in that appeal. Having regard to the facts and circumstances presented, I find that petitioner is incompetent to seek the aid of this Court for staying the execution of a validly passed decree obtained by the respondent / defendant in a full fledged trial. He has to work out his remedies in his appeal which is already preferred challenging the decree granted in favour of the respondent. If at all the appeal is decided in his favour, he can have recourse to the provisions under S.144 of the Code of Civil Procedure for restitution.