S KUMAR Vs. SUDHAKARAN

JUDGEMENT

(1.) The question involved in this Writ Petition is whether the defendant in a suit can invoke Section 10 of the Code of Civil Procedure to stay the suit, on the ground that the Execution Petition filed by him to execute the decree in his favour in the previously instituted suit is pending.

(2.) The writ petitioner is the decree holder in O.S. No. 468 of 1972, on the file of the Court of the Munsiff of Neyyattinkara. The suit was for partition. Final decree was passed in favour of the writ petitioner. he filed Execution Petition. Amin was appointed to execute the decree. The respondents herein obstructed the Amin. They also filed a claim petition before the executing court which was later withdrawn. Thereafter, the respondents filed O.S. No. 580 of 2008 before the Munsiff's Court, Neyyattinkara for injunction and other reliefs. In O.S. No. 580 of 2008, the respondents contended that they were not parties to O.S. No. 468 of 1972 and that the suit was instituted since in execution of the decree in the former suit, attempt was made to deliver the property belonging to them. In O.S. No. 580 of 2008 the trial court granted an order of temporary injunction. The writ petitioner challenged that order in Civil Miscellaneous Appeal and that appeal is pending.

(3.) The writ petition filed I.A. No. 210 of 2009 in O.S. No. 580 of 2008 under Section 10 of the Code of Civil Procedure to stay trial of the suit till the finality of the execution proceedings in O.S. No. 468 of 1972. The court below dismissed that application holding that the ingredients of Section 10 are not attracted to enable the petitioner to get an order of stay.