Kerala High Court
Vijayalekshmi vs Divya on 21 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G. GIRISH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
FAO NO.29 OF 2024
AGAINST THE ORDER DATED 08.02.2024 IN OS NO.19 OF 2022 OF
ASSISTANT PRINCIPAL SUB COURT / COMMERCIAL COURT, THRISSUR
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 VIJAYALEKSHMI
AGED 72 YEARS, W/O LATE KANNOLI VASUDEVAN,
INCHAMUDI VILLAGE, CHIRAKKAL DESOM, P.O INCHAMUDI,
THRISSUR TALUK., PIN - 680 561
2 LEENA
AGED 53 YEARS, D/O LATE KANNOLI VASUDEVAN,
INCHAMUDI VILLAGE, CHIRAKKAL DESOM, P.O INCHAMUDI,
THRISSUR TALUK, AND W/O K.K SREENIVASAN,
KOTTARAPATTIL HOUSE, OTTAPALAM TALUK, PALAKKAD
DISTRICT., PIN - 680 561
3 MUKHIL
AGED 52 YEARS, D/O LATE KANNOLI VASUDEVAN,
INCHAMUDI VILLAGE, CHIRAKKAL DESOM, P.O INCHAMUDI,
THRISSUR TALUK, AND WIFE OF PURAPPILLI SREEKUMAR,
ALUVA DESOM., PIN - 680 561
BY ADVS.
K.S.HARIHARAPUTHRAN
PINKU MARIAM JOSE
K.M.FATHIMA
RESPONDENTS/PETITIONERS/PLAINTIFFS:
1 DIVYA
AGED 43 YEARS, W/O KANNOLI NISHAN, INCHAMUDI
VILLAGE, CHIRAKKAL DESOM, P.O INCHAMUDI, THRISSUR
TALUK, NOW RESIDING AT D/O LATE PARATHATTIL
VISHWANADHAN, P.O KANJANI., PIN - 680 561
2 DEVAN
AGED 20 YEARS, S/O KANNOLI NISHAN, INCHAMUDI
VILLAGE, CHIRAKKAL DESOM, P.O INCHAMUDI,
THRISSUR TALUK, NOW RESIDING AT DIVYA, MOTHER.,
2
FAO No.29 of 2024
PIN - 680 561
BY ADVS.
SANTHEEP ANKARATH
P.ANIRUDHAN(K/002306/2021)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
FAO No.29 of 2024
G. GIRISH, J.
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FAO No.29 of 2024
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Dated this the 21st day of May, 2024
JUDGMENT
The order dated 08.02.2024 of the Principal Sub Court,
Thrissur in I.A.No.5 of 2022 appointing a Receiver under Order
XL Rule 1 Code of Civil Procedure is under challenge in this
appeal.
2. The appellants are defendants 1 to 3 in the suit in
which the aforesaid order has been passed by the learned Sub
Judge. The 1st respondent is none other than the daughter in law
of the 1st appellant and the 2nd respondent is the son of the 1 st
respondent. The husband of the 1st respondent, who was the son
of the 1st appellant, passed away on 26.01.2012. The
respondents instituted the suit claiming partition of 2/12 share of
A Schedule property and 2/3 share of B Schedule property which
include some shop rooms which are leased out.
3. Before the Trial Court, the respondents/plaintiffs
herein who filed the Receiver application stressed upon the point
that they are struggling hard to meet the expenses for their
livelihood as well as the educational expenses, and hence it is
highly necessary to have payment of their proportionate share of
the rental income being received by the appellants/defendants 1
to 3 herein from the shops rented out to strangers. The learned
Sub Judge, after taking in to account of the rival contentions,
arrived at the finding that the appointment of a Receiver was
just and convenient. Accordingly, the impugned order dated
08.02.2024 was passed appointing an advocate as Receiver of
Item Nos.12 to 17 of Plaint A Schedule property and Item No.4
of Plaint B Schedule property.
4. Heard the learned counsel for the appellants/
defendants 1 to 3 for some time.
5. During the course of arguments, to a query put by the
Court about the dire necessity of the respondents/plaintiffs to
have at least the minimum amount required for meeting their
educational expenses and livelihood from their share of the
property sought to be partitioned, the learned counsel for the
appellants/defendants 1 to 3 submitted that the appellants/
defendants 1 to 3 are ready to make payment of a reasonable
amount during the pendency of the suit to the
respondents/plaintiffs. After discussions with the learned counsel
for the respondents/plaintiffs, it was suggested that an amount
of Rs.1 lakh per month could be fixed as the amount to be paid
to the respondents/plaintiffs during the pendency of the suit as
an interim arrangement towards the share of mesne profits to
which the respondents/plaintiffs are entitled.
6. The learned counsel for the appellants/defendants 1
to 3, after contacting the parties over cell phone, submitted that
the appellants/defendants 1 to 3 are ready to make payments as
suggested above during the course of hearing in this Receiver
application. The learned counsel for the respondents/plaintiffs
submitted that the Receiver appointed by the Trial Court could
be discharged taking into account of the above arrangement
towards payment of Rs.1 lakh per month to the
respondents/plaintiffs by the appellants/defendants 1 to 3 as
part of the mesne profits to which the respondents/plaintiffs are
entitled.
7. Having regard to the above submissions of the
learned counsel representing both sides, and also the facts and
circumstances of the case, I deem it appropriate to dispose of
this appeal with the following directions: -
i) The order dated 08.02.2024 of the Principal Sub
Court, Thrissur in I.A.No.5 of 2022 in O.S.No.19 of
2022 will stand set aside subject to fulfilment of the
undertaking of the appellants/defendants 1 to 3 to
make payment of Rs.1 lakh per month to the
respondents/plaintiffs w.e.f. 08.02.2024 onwards,
till the disposal of the suit, as their pendente lite
share of mesne profits, of which the actual
quantum to which the plaintiffs are entitled, will be
decided in the suit.
ii) The amount of Rs.1 lakh per month due to the
respondents/plaintiffs from 08.02.2024 to
08.05.2024 has to be paid out of the amount
deposited by the Receiver before the Trial Court,
upon application by the respondents/plaintiffs. The
balance amount, if any, in deposit, after deducting
Receiver's remuneration, could be released to the
appellants/defendants 1 to 3 upon filing an
application before the Trial Court in that regard.
iii) The appellants/defendants 1 to 3 shall make
payment of the future amount of Rs.1 lakh per
month from 08.06.2024 onwards directly to the
respondents/plaintiffs, on or before the 8th of every
calendar month.
v) The interim arrangement of payment of mesne
profits as directed above shall remain in force
during the pendency of the suit, and the necessary
adjustments will be made later on subject to the
final decision in the partition suit.
v) In case of any default in making payment as
directed in this order, the respondents/plaintiffs will
be entitled to approach the Trial Court and seek the
revival of order of appointment of Receiver. The
reason for non-payment of the amount, in such a
contingency, has to be looked into by the Trial
Court before passing revival orders of appointment
of Receiver, and every effort shall be made to keep
alive and preserve the terms of agreement between
the parties upon which this judgment has been
rendered.
Sd/-
G. GIRISH, JUDGE
ded
