IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11677 of 2010(O)
1. RAHIYANATH AZAD,D/O.LATE ISMAIL,
... Petitioner
Vs
1. ANZAR RAHIM,PALM GROVE,THEKKEVILA,KOLLAM
... Respondent
2. AZAD RAHIM,MALIKA VEEDU,KOTTAKKAKOM WARD
3. LAILA ASLAM,BLUE MOUNT, KOTTAKAKOM WARD,
4. JAMEELA SALI, LEPPERRY HOUSE,ALISSERY
5. SHAMEELA FAZAL,MANAPPATT HOUSE, NEAR
6. THE OFFICIAL RECEIVER,DISTRICT COURT,
For Petitioner :SRI.P.B.KRISHNAN
For Respondent :SRI.BABU KARUKAPADATH
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :25/05/2010
O R D E R
THOMAS P.JOSEPH, J.
====================================
W.P(C) No.11677 of 2010
and
W.P(C) No.11681 of 2010
====================================
Dated this the 25th day of May, 2010
J U D G M E N T
In a suit for partition – O.S. No.205 of 1973 on the file of
learned Sub Judge, Kollam while the learned Sub Judge passed a
preliminary decree appointed an Official Receiver to take
possession of the property. Wife of defendant No.1 who is not a
party to the suit claiming to be interested and affected by the
judgment and decree filed Ext.P3, application under Section 151 of
the Code of Civil Procedure claiming that the property in her
possession is not liable to be proceeded against. She also applied
for a carbon copy of the judgment dated 31.03.2010 to enable her
prefer an appeal. As carbon copy of the judgment was not issued
to her she filed W.P(C) No.11677 of 2010 for a direction to the
learned Sub Judge to dispose of Ext.P3, application referred to
above and for stay of all proceedings of the Official Receiver to
take custody or management of A schedule property in the suit.
2. Writ Petition No.11681 of 2010 is preferred by
defendant No.1 in the suit, also affected by the judgment and
W.P(C) No.11677 of 2010 &
WP(C) No.11681 of 2010
-: 2 :-
decree dated 31.03.2010 seeking a direction to issue a carbon
copy of the judgment applied for. So far as that petition is
concerned learned counsel for petitioner submits that petitioner
has already been issued with a carbon copy of the judgment. In
Writ Petition No.11677 of 2010 petitioner who is a third party is
yet to get a carbon copy of the judgment. In both the cases this
Court as per order dated 05.04.2010 granted interim stay as
prayed for two months from that day which is to expire by
04.06.2010. So far as Writ Petition No.11681 of 2010 is
concerned, the main prayer in that petition has become
infructuous since carbon copy of the judgment has already been
issued to the petitioner and it is open to the petitioner to
challenge the judgment and decree in appropriate proceedings as
provided under law.
3. There is dispute between the parties as to whether the
Official Receiver has already taken possession of the property
concerned. While petitioners assert that Official Receiver has
only applied for assistance of police to take possession of the
property, learned counsel for respondents would contend that as
per records submitted by the Official Receiver in the court below
he has already taken possession of the property. Question
W.P(C) No.11677 of 2010 &
WP(C) No.11681 of 2010
-: 3 :-
whether Official Receiver has taken possession of the property is
not a matter required to be resolved in these proceedings and
hence I refrain from doing so.
The Writ Petitions are disposed of in the following lines:
(i) Writ Petition No.11681 of 2010 is closed
since carbon copy of the judgment has already been
issued to the petitioner.
(ii) Writ Petition No.11677 is disposed of
directing the learned Sub Judge, Kollam to issue
carbon copy of the judgment in O.S. No.205 of 2007
to the petitioner as early as possible if it is applied for
in accordance with the relevant rules.
(iii) It is directed that the interim order of stay
passed by this Court in both these cases on
5.04.2010 (for a period of two months from that date)
will remain in force in case the Official Receiver has
not already taken possession of the property.
THOMAS P. JOSEPH, JUDGE.
vsv
