Kerala High Court
Sreenivasan vs Padmanabhan Nair on 28 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
OP(C) NO. 2141 OF 2019
AGAINST THE ORDER DATED 06.07.2019 IN EA NO.561 OF 2019 IN
E.A.NO.374/2016 IN E.P.NO.273/2015 OF THE 1ST ADDITIONAL
SUB COURT, KOZHIKODE
PETITIONERS/RESPONDENTS 12 & 13:
1 SREENIVASAN,
AGED 54 YEARS
S/O.KUTTISANKARAN NAIR, VYSHNAVI HOUSE,
ATHOLI (P.O.), KOZHIKODE DISTRICT - 673 315.
2 DEVADASAN,
AGED 51 YEARS
S/O.KUTTISANKARAN NAIR, SREEVIHA, VENGERI (P.O.),
KOZHIKODE DISTRICT - 673 010.
BY ADVS.
M.PROMODH KUMAR
SMT.MAYA CHANDRAN
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 11 AND 14 TO
18:
1 PADMANABHAN NAIR,
S/O.KRISHNAN NAIR, THENAKKODU HOUSE, CHELANNUR
(P.O.), KOZHIKODE DISTRICT - 673 104.
2 VINU,
S/O.KRISHNAN NAIR, THENAKKODU HOUSE, CHELANNUR
(P.O.), KOZHIKODE DISTRICT - 673 104.
3 BAIJU,
S/O.KRISHNAN NAIR, THENAKKODU HOUSE, CHELANNUR
(P.O.), KOZHIKODE DISTRICT - 673 104.
OP(C) NO. 2141 OF 2019
- : 2 :-
4 RAGHAVAN NAIR,
S/O.GOPALAN NAIR, AGED 74 YEARS, ADUKKATH VEEDU,
PARANNUR (P.O.), KOZHIKODE DISTRICT - 673 585.
5 KARTHIAYINI AMMA,
D/O.GOPALAN NAIR, AGED 79 YEARS, MODAKKALLUR
(P.O.), KODASSERY, KOYILANDY, KOZHIKODE DISTRICT
- 673 315.
6 KUNHILAKSHMI AMMA,
W/O.RAGHAVAN NAIR, AGED 72 YEARS,
VARIYAMKANDY VEEDU, NEELESWARAM (P.O.),
KOZHIKODE DISTRICT - 673 572.
7 SOUMINI AMMA,
D/O.RAGAVAN NAIR, AGED 52 YEARS,
VARIYAMKANDY VEEDU, NEELASWARAM (P.O.),
KOZHIKODE DISTRICT - 673 572.
8 SATHI,
D/O.RAGHAVAN NAIR, AGED 47 YEARS,
VARIYAMKANDY VEEDU, NEELASWARAM (P.O.),
KOZHIKODE DISTRICT - 673 572.
9 VIJAYAM,
D/O.RAGHAVAN NAIR, AGED 52 YEARS,
VARIYAMKANDY VEEDU, NEELASWARAM (P.O.),
KOZHIKODE DISTRICT - 673 572.
10 APPU @ PADMANABHAN,
S/O.RAGHAVAN NAIR, AGED 42 YEARS,
VARIYAMKANDY VEEDU, NEELASWARAM (P.O.),
KOZHIKODE DISTRICT - 673 572.
11 NARAYAN,
S/O.KUTTY SANKARAN NAIR, AGED 65 YEARS,
KOYITHANANTH PARAMBU, MAYANAD (P.O.),
KOZHIKODE DISTRICT - 673 008.
12 VISWANATHAN,
S/O.KUTTY SANKARAN NAIR, AGED 61 YEARS,
KUTTIKKATTIL HOUSE, AYANIKKAD, IRINGAL (P.O.),
VATAKARA, KOZHIKODE DISTRICT - 673 521.
OP(C) NO. 2141 OF 2019
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13 LEELA,
D/O.KUTTY SANKARAN NAIR, AGED 52 YEARS,
KUTTIKKATTIL HUSE, AYANIKKAD, IRINGAL (P.O.),
VATAKARA, KOZHIKODE DISTRICT - 673 521.
14 MALU @ ROHINI,
D/O.KUTTY SANKARAN NAIR, AGED 57 YEARS,
VAYYOKKIL VEEDU, MODAKKALLUR (P.O.),
KOYILANDY, KOZHIKODE DISTRICT - 673 315.
15 SOBHANA,
D/O.KUTTY SANKARAN NAIR, AGED 50 YEARS,
VALIYAPARAMBATH, CHEMMALATHUR (P.O.),
VATAKARA, KOZHIKODE DISTRICT - 673 104.
16 VIMALA,
D/O.KUTTY APPU NAIR, AGED 61 YEARS,
PERINGAD HOUSE, NEELESWARAM P.O.,
KOZHIKODE DISTRICT - 673 572.
17 SATHYABHAMA,
D/O.KUTTY APPU NAIR, AGED 61 YEARS,
PERINGAD HOUSE, NEELESWARAM P.O.,
KOZHIKODE DISTRICT -673 572.
18 UNNIKRISHNAN,
S/O.VELAYUDHAN, AGED 44 YEARS, VADAKKEKARAYAD
HOUSE, VELOOR P.O., ATHOLI,
KOZHIKODE DISTRICT - 673 315.
19 RADHAKRISHNAN,
S/O.VELAYUDHAN, AGED 38 YEARS, VADAKKEKARAYAD
HOUSE, VELOOR P.O., ATHOLI,
KOZHIKODE DISTRICT - 673 315.
BY ADVS.
SRI.T.G.SUNIL (PRANAVAM)
SRI.ZUBAIR PULIKKOOL
SRI.J.OM PRAKASH
SRI.C.X.ANTONY BENEDICT
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 2141 OF 2019
- : 4 :-
JUDGMENT
Ext.P7 common order passed by the Additional Sub Court,
Kozhikode appointing an Advocate Commissioner in a claim petition
is under challenge in this original petition.
2. E.P.No.273 of 2015 has been filed to execute a final decree
for partition. The respondents 1 to 3 herein filed a claim petition,
claiming right over a portion of the decree schedule property. The
decree holders opposed the said application. In the counter statement
filed by them, they disputed the identity of the property shown in the
claim petition. Since the identity of the claim petition schedule
property is disputed by the decree holders, the claim petitioners filed
a petition to appoint an Advocate Commissioner. The said petition
was allowed by the Trial Court as per Ext.P7 order. Challenging the
said order, the petitioners have come up before us.
3. I have heard both sides.
4. It is settled that the claim petition has to be adjudicated
and disposed of as a suit. When the identity of the claim petition is
OP(C) NO. 2141 OF 2019
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disputed by the contesting decree holders, it is the duty of the claim
petitioners to identify the claim schedule property. The Commission
application has been filed to identify the claim schedule property.
Hence, I am of the view that the Trial Court was justified in
allowing the Commission application. I find no illegality or
impropriety in the impugned order. Accordingly, this original
petition is dismissed.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE
AS
OP(C) NO. 2141 OF 2019
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APPENDIX OF OP(C) 2141/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE FINAL DECREE IN FDIA
NO.4462/1991 DATED 23/02/2007.
EXHIBIT P2 TRUE COPY OF THE APPLICATION,
E.P.NO.273/2015, DATED 20/05/2015.
EXHIBIT P3 TRUE COPY OF THE E.A.NO.374/2016, DATED
30/10/2015.
EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT TO
EXT.P3 PETITION, DATED 15/10/2016.
EXHIBIT P5 TRUE COPY OF THE PETITION,
E.A.NO.561/2019, DATED 20/06/2019.
EXHIBIT P6 TRUE COPY OF THE COUNTER FILED BY THE
PETITIONERS TO EXT.P5, DATED 27/06/2019.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 06/07/2019
PASSED BY THE SUB COURT IN
E.A.NO.561/2019.
