OP(C) No. 895 of 2012 · Kerala High Court
Case at a glance
- Bench
- V CHITAMBARESH
Outcome
Allowed
The original petition is allowed to this limited extent
Provisions considered
Key paragraphs
- Para 44. I set aside Ext.P8 order and remit the matter to the court below to reconsider E.A.No.27/2012 in E.P.No.73 of 2011 inO.S.No.72 of 2008 to the court of the Sub-ordinate Judge of Perumbavur. I direct the court below to depute an AdvocateCommissioner and call for…
Judgment
OP(C).No. 895 of 2012 (O) -2-4. MOLI, W/O. ABRAHAM KOTTACKAL HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE, 683542 BY ADV. SRIJEEMON JOHN BY ADV. SRI.P.M.MANOJ BY ADV. SRI.S.RUSSEL BY ADV. SRI.V.R.ARUN BY ADV. SRI.AJEESH K.SASI THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:SU/- OP(C).No. 895 of 2012 (O) -3-APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF PRELIMINARY DECREE IN O.S.72/08 OF SUB COURT, PERUMBAVOOR DT 25/3/2009EXT.P2: TRUE COPY OF COMMISSION REPORT FILED BY COMMISSIONR IN O.S. 72/2008 DT 21/6/2010EXT.P3: TRUE COPY OF SURVEY PLAN FILED ALONG WITH EXHIBIT P2EXT.P4: TRUE COPY OF FINAL JUDGMENT IN O.S. 72/08 DT 22/1/2011EXT.P5: TRUE COPY OF DELIVERY REPORT IN O.S. 72/08 DT 3/2/2012EXT.P6: TRUE COPY OF OBJECTION FILED TO THE DELIVERY REPORT BY THE PETITIONERS ON 14/2/2012 EXT.P7: TRUE COPY OF PETITION FILED BY PETITIONER TO APPOINT ADVOCATE COMMISSIONR DT 14/2/2012 (E.A. 27/2012 IN E.P. 73/2011)EXT.P8: TRUE COPY OF ORDER IN E.A. 27/2012 IN E.P. 73/2011 IN O.S. 72/08 RESPONDENTS' EXHIBITS :NIL./TRUE COPY/P.A. TO JUDGESU/- V.CHITAMBARESH, J.------------------------------------O.P.(C). NO.895 of 2012----------------------------------------------Dated this the 24th day of May, 2012JUDGMENTDefendants 2, 3, 4 and 7 in a suit for partition are the petitioners. A final decree for partition was passed in tune with the preliminary decree . The final decree contains a plan showing the allotment of various plots to the sharers. The complaint of the petitioners is that the delivery has not been effected in accordance with the plan appended to the decree.
Petitioners did file E.A.No.27 of 2012 in E.P.No.73 of 2011under Section 47 of the Code of Civil Procedure. They also sought for deputation of an Advocate Commissioner to verify this aspect with the help of a Surveyor. This has been turned down by the court below by Ext.P8 order which is impugned in this original petition.
A duty vests in the court below to consider all questions arising between the parties relating to the execution, discharge or satisfaction of the decree under Section 47 of the Code of CivilProcedure. The petitioners in order to substantiate their claim wanted the appointment of an Advocate Commissioner. The court below was in error in rejecting that prayer. The court below has not O.P.(C). NO.895 of 20122only rejected the prayer but also dismissed the petition filed under Section 47 of the Code of Civil Procedure. Ext.P8 order under this circumstance clearly suffers from an error of jurisdiction.
Operative part
I set aside Ext.P8 order and remit the matter to the court below to reconsider E.A.No.27/2012 in E.P.No.73 of 2011 inO.S.No.72 of 2008 to the court of the Sub-ordinate Judge of Perumbavur. I direct the court below to depute an AdvocateCommissioner and call for a report with the aid of a Surveyor. Thecourt below is at liberty to depute the same Advocate Commissionerappointed in the suit since identification of the property with reference to the existing plan is involved. The court below shall consider the application filed under Section 47 of the Code of Civil Procedure aftera report is so obtained. The original petition is allowed to this limited extent. No costs. V.CHITAMBARESH, JUDGEsu/-
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The original petition is allowed to this limited extent
Which statutory provisions did this judgment involve?
Code of Civil Procedure, 1908 — s. 47.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.