IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24426 of 2009(O)
1. KUNJITHAMI, THARAYIL HOUSE,
... Petitioner
Vs
1. SUBHADRA, D/O.THARAYIL RAMAN,
... Respondent
For Petitioner :SRI.K.S.RAJESH
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :27/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.24426 OF 2009
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Dated this the 27th day of August 2009
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JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Pass an order setting aside the order
dated 23/07/2009 passed by the Munsiff Court,
Kodungallur in I.A No.2191/2008 in O.S 234/2005 in
the interest of justice.
ii) Any other orders that this Hon’ble
Court may deem fit.
2. Petitioner is the first defendant in
O.S No. 234 of 2009 on the file of the Munsiff
Court, Kodungallur. The above suit is one for
W.P.(C).No.24426 OF 2009 Page numbers
partition in which a preliminary decree has already
been passed. In the final decree proceedings, a
commission was appointed to measure out the
properties to effect division of the shares in tune
with the preliminary decree. The commissioner
after executing the work, filed a report and plan
to which petitioner, the first defendant raised
objections. The learned Munsiff finding no merit
in the objections raised negatived them by Ext.P4
order. Propriety and correctness of Ext.P4 order
is challenged in the writ petition invoking the
supervisory jurisdiction vested with this court
under Article 227 of the Constitution of India.
3. I heard the learned counsel for the
petitioner. Having regard to the submissions made
and taking note of the facts and circumstances
presented, I find, no notice to the respondents is
necessary and it is dispensed with. A commission
report, though has much relevance in a final decree
proceedings, after all is only a piece of evidence.
W.P.(C).No.24426 OF 2009 Page numbers
This court in exercise of its visitorial
jurisdiction under Article 227 of the Constitution
of India cannot be expected nor is it proper or
appropriate to examine the correctness of a
commission report on its merits which is yet to be
considered by the court below. Further more, in a
final decree proceeding acceptance of the
commission report will lead to the passing of the
final decree. Of course the court can vary or
modify the report and pass a decree as found proper
and correct. After all the defendants in the suit
will get an opportunity to challenge the
correctness of the commission report in case any
adverse decision is made against them and an appeal
has to be preferred against the final decree passed
by the court. Writ petition lacks merit, and it is
dismissed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv