IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25425 of 2005(B)
1. MADHAVAN, AGED 70, S/O.SANKU,
... Petitioner
Vs
1. CHITTATTUKARA PANCHAYATH SERVICE
... Respondent
2. SPECIAL SALE OFFICER, MANNAM,
3. SASIDHARAN, AGED ABOUT 65,
4. DAYALU, AGED 70, D/O.KUTTAN,
For Petitioner :SRI.P.N.RAMAKRISHNAN NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :10/07/2008
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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WP(C).No.25425 of 2005-B
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Dated this the 10th day of July, 2008.
JUDGMENT
1.Petitioner, respondents 3 and 4 and others held
certain property in common. That was put to
partition in O.S.595/1994 of the Principal Sub
Court, N.Parur. Resultantly, a final decree has
been passed in that suit. That has been confirmed
by the superior courts also.
2.During the pendency of the aforesaid suit for
partition, respondents 3 and 4 created a mortgage
of that property in favour of the first
respondent, a co-operative bank and obtained a
loan. On account of default, the bank proceeded
for recovery and this has led to execution
WP(C)25425/05 -: 2 :-
proceedings.
3.In the light of the decree for partition, it
cannot be disputed that the execution
proceedings as against respondents 3 and 4 on
account of the mortgage created by them has to
be confined, even on equitable considerations,
to be only as against the property (share)
allotted to them as per the final decree in the
aforesaid suit. The petitioner has, therefore,
filed Ext.P9 taken on record today by order on
I.A.8358/2008. By that petition, he has invoked
Rule 90 of the KCS Rules, 1969 and has filed a
claim agitating the aforesaid contentions.
For the foregoing reasons, this writ petition is
ordered directing that Ext.P9 will be taken up,
considered and disposed of by the competent
authority in the light of what is stated above
and in accordance with law. Pending such
consideration, it is further directed that the
execution proceedings referable to the loan
transactions of respondents 3 and 4 shall stand
confined to be against the share allotted to
WP(C)25425/05 -: 3 :-
them in the final decree in the aforesaid suit.
THOTTATHIL B. RADHAKRISHNAN,
JUDGE.
Sha/100708