IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 763 of 2005(N)
1. ST.MARY'S ORTHODOX CATHEDRAL,
... Petitioner
2. P.K.ISAC, S/O. P.K.KUTTY,
Vs
1. PAILY, S/O. THOMAS,
... Respondent
For Petitioner :SRI.M.P.ABRAHAM
For Respondent :SRI.N.C.JOSEPH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :10/07/2007
O R D E R
PIUS C. KURIAKOSE,J.
- - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No.763 of 2005
- - - - - - - - - - - - - - - - - - - - - - - - -
Dated: 10th July, 2007
JUDGMENT
Heard Mr.M.P.Abraham, Senior Advocate for the petitioners and
Mr.N.C.Joseph, Advocate for the respondent.
2. Flaying Ext.P1 Mr.Abraham, invited my attention to the
order dated 2.11.2004 in I.A.No.8102/02 under which the court
below has closed the commission application. He placed before me
copy of the order dated 5.11.2004 dismissing the earlier commission
application filed by the respondent as infructuous. He has also
produced before me copy of the order dated 2.11.2004 in
I.A.No.9103/04 setting aside the report which had been submitted by
the previous Commissioner in the case. Mr.Abraham would submit
that it is overlooking the above three orders which had attained
finality that the learned Munsiff passed Ext.P1 in a very casual way.
3. Mr.N.C.Joseph, learned counsel for the respondent would
invite my attention to Ext.R1 counter affidavit which was filed by the
petitioner to the commission application upon which Ext.P1 was
passed and particularly to a separate application which had been filed
by the petitioner along with a counter affidavit . The application is
dated 30.10.2004 and the prayer in the application is that the
W.P.C.No.763/05 – 2 –
commission report dated 4.6.2004 and the survey plan be set aside
and a fresh commission be issued for measuring the property of the
plaintiff on the basis of the sale deeds. Mr.Joseph submitted that it
was considering that application also that the impugned order was
passed. I would have been inclined to observe that there is merit at
least technically in the submissions of the learned Senior Counsel but
for the obvious position that it is considering the application filed by
the petitioner also, that the impugned order was issued by the
learned Munsiff. I do not find any warrant for interfering with Ext.P1
in exercise of the supervisory jurisdiction of this court under Article
227 of the Constitution. The challenge against Ext.P1 will fail. The
Writ Petition will stand dismissed. No costs.
srd PIUS C.KURIAKOSE, JUDGE