IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 839 of 2008()
1. RAJU, S/O.KANJIRATHARAVEETTIL YESODA,
... Petitioner
2. VENU, S/O.KANJIRATHARAVEETTIL YESODA,
Vs
1. YESODA, W/O.KANJIRATHARAVEETTIL GOVINDAN
... Respondent
2. MANI, D/O.KANJIRATHARAVEETTIL YESODA,
3. SUBRAMANIAN, S/O.KANJIRATHARAVEETTIL
4. GIRESSAN, S/O.KANJIRATHARAVEETTIL
5. SANTHA, D/O.KANJIRATHARAVEETTIL YESODA,
6. SAROJINI, D/O.KANJIRATHARAVEETTIL
For Petitioner :SRI.K.G.BALASUBRAMANIAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :19/09/2008
O R D E R
V.RAMKUMAR, J.
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R.S.A.No.839 of 2008
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Dated this the 19thday of September, 2008.
J U D G M E N T
The defendants in O.S.No.333/1999 on the file of the Munsiff’s
Court, Kodungallur, are the appellants in this second appeal. The
said suit was for partition of separate possession of plaintiff’s share
over 6.25 cents of land with two buildings and a hut thereon.
2. Parties will be referred to according to their rank in the
court below. A preliminary decree was passed holding that plaintiffs
1 to 6 are entitled to partition and separate possession of 6/8
shares in the plaint schedule property. In order to effect partition
my metes and bounds in terms of the preliminary decree, the court
below appointed an advocate commissioner. The commissioner
filed a report stating that physical partition of the property was not
possible. Thereafter, plaintiffs filed I.A.No.278/2003 for directing
the advocate commissioner to sell the plaint schedule property and
to deposit the sale consideration in the executing court. That
petition was allowed. On 8.7.2003, the advocate commissioner
appointed by the court, conducted an auction among the sharers.
However, the court below set aside the sale conducted by the
R.S.A.No.839 of 2008 2
advocate commissioner as per its order dated 14.3.2007 in
I.A.No.1869/2006. Thereafter, a fresh sale was ordered to be
conducted in open court in the light of the judgment of this Court in
W.P.(C).No.19401/2007. Thereafter, the sale among the sharers
was conducted in the open court on 13.8.2007. The highest bid
offered was by the 4th petitioner, Gireesan and the amount offered
was Rs.2,55,000/-. The said offer was accepted and the sale was
confirmed in his favour for the said amount. The 4th petitioner had
deposited Rs.1,01,040/- in the earlier auction proceedings. After
deducting the said amount, the 4th petitioner, Gireesan deposited
the balance sale price in the executing court which confirmed the
sale in his favour. Subsequent to the setting aside of the 1st sale,
petitioners 1 to 6 had withdrawn their share of sale proceeds
amounting to Rs.75,780/-. As per the preliminary decree
petitioners and respondents are entitled to 1/8 share each costing
Rs.31,875/-. Since petitioners 1,2,3,5 and 6 had already withdrawn
Rs.75,780/- towards their share, they were held entitled to
withdraw the balance amount which works out to Rs.19,245/- each.
It was on this basis that court below passed the final decree,
allotting the plaint schedule property to the share of 4th petitioner,
R.S.A.No.839 of 2008 3
Gireesan, he being the purchaser of the property in the sale
conducted among the sharers. Petitioners 1,2,3,5 and 6 before the
court below were thereupon directed to deliver the decree schedule
property to the 4th petitioner. The said order has been confirmed by
the Sub Court in appeal, consequent on the dismissal of the petition
to condone the inordinate delay. It is the said delivery which is
sought to be restrained by the defendants who were the
respondents before the court below.
I am not inclined to accept the appellants’ contention that the
second appeal raises the questions of law formulated at page four of
the memorandum of second appeal. No question of law much less
any substantial question of law arises for consideration in this
second appeal which is accordingly dismissed in limine.
V.RAMKUMAR
JUDGE.
bkn/-