Madhavan vs Kausalya on 29 September, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 28137 of 2008(Y)


1. MADHAVAN, S/O.KUNJAN, AGED 78 YEARS,
                      ...  Petitioner

                        Vs



1. KAUSALYA, D/O.KUNJAN, THANNICHUVATTIL
                       ...       Respondent

2. THANNICHUVATTIL SREEDHARMA SASTHA

3. PURUSHOTHAMAN, S/O.DAMODARAN,

4. KRISHNAN, S/O.SANKU, CHELAPPURATHU

5. BIJU, S/O.KUNJAPPAN, CHELAPPURATH HOUSE,

6. RAJAPPAN, S/O.KUMARAN, KALLOLICKAL HOUSE

                For Petitioner  :SRI.P.S.SREEDHARAN PILLAI

                For Respondent  :SRI.K.K.CHANDRAN PILLAI

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :29/09/2008

 O R D E R
                       V. RAMKUMAR, J.
                    = = = = = = = = = = = = =
                    W.P.(c).No.28137 of 2008
                   = = = = = = = = = = = = = =
           Dated this the 29th day of September, 2008

                            JUDGMENT

The writ petitioner is the defendant in O.S.No.510 of 1988

on the file of the Munsiff’s Court, Muvattupuzha, which is a suit

for partition filed by his sister. He resists the order passed by

the Executing Court in E.P.No.88 of 2008 for delivery of the

property in terms of the final decree passed by the trial court

which has been confirmed in appeal by the lower appellate court.

His contention that the final decree included a property, which

does not form part of the joint property and was therefore not

partiable has been considered by both the courts below. It has

been found that it was he who inducted respondents 2 to 8 in the

final decree proceedings as committee members of the temple

situated to the property in which he himself is functioning as the

Poojary. The argument that without amending the preliminary

decree, the properties cannot be delivered over, has no legs to

stand on. The final decree court, having allowed the plaint to be

amended in accordance with the report and plan submitted by

W.P.(c).No.28137 of 2008
2

the Advocate Commissioner, can very well amend the

preliminary decree so as to make it conformity with the plaint

schedule as amended, in view of Section 153 Cr.P.C. I therefore,

do not find any good ground to interfere with the order passed

by the Executing Court. This writ petition is accordingly

dismissed.

Dated this the 29th day of September, 2008.

V. RAMKUMAR, JUDGE

sj