M. Sirajudheen Vs. Kodithodika Aminakutty - Court Judgment

SooperKanoon Citationsooperkanoon.com/1129346
CourtKerala High Court
Decided OnJan-28-2014
JudgeHONOURABLE MR.JUSTICE V.CHITAMBARESH
AppellantM. Sirajudheen
RespondentKodithodika Aminakutty
Excerpt:
in the high court of keralaat ernakulam present: the honourable mr.justice v.chitambaresh tuesday, the28h day of january20148th magha, 1935 op(c).no. 206 of 2014 (o) -------------------------- against the order in ep no. 82/2013 in ia no. 1434/2001 in os no. 389/1993 of the court of the subordinate judge, manjeri petitioner(s): -------------------------- m. sirajudheen, s/o. alavi manningalchali house valamangalam desom pulpatta,ernad taluk malappuram district. by advs.sri.babu s. nair sri.k.rakesh respondent(s): ---------------------------- 1. kodithodika aminakutty d/o. mammadkutty payyanad amsom desom ernad taluk, malappuram district676122.2. kodithody veerankutty haji s/o. mammad kutty karakunnu amsom desom ernad taluk, malappuram district676123.3. pathummukuty,w/o. kodithody ahammedkutty haji, thrikkalangode amsom, anangottupuram ernad taluk, malappuram district676121.4. puthanveettil ahammedkutty s/o. alavikutty, perakamanna ernad taluk, malappuram district676541.5. puthanveettil unni hydru, s/o. alavikutty perakamannaamsom desom, ernad taluk malappuram district676541.6. cheriyalacheth hamza haji, s/o. moideen haji valamangalam amsom, pulpattadesom ernad taluk, malappuram district676126. this op (civil) having come up for admission on2801-2014, along with op(c) no. 226/2014 the court on the same day delivered the following: op(c) no. 206/2014 appendix petitioner(s) exhibits exhibit p1 : true copy of the judgment dated2402.2012 in op(c) no. 3980/2011 of this honourable court. exhibit p2 : true copy of the final order in ia no. 1434/2001 in os no. 389/1993 of the sub court, manjeri dt. 31.07.2012. exhibit p3 : true copy of the appeal memorandum filed by the petitioner and another before the district court, manjeri as appeal suit no. 79/2012 dated2809.2012. exhibit p4 : true copy of the execution petition no. 82/2013 filed before the sub court, manjeri dated2506.2013. exhibit p5 : true copy of the ia no. 1030/2012 filed in as no. 79/2012 before the district judge, manjeri. respondent(s) exhibits : nil /true copy/ p.a. to judge. v. chitambaresh, j -------------------------------- op(c) nos. 206 & 226 of2014------------------------------------ dated this the 28th day of january, 2014 judgment the petitioner in both these original petitions is the sixth defendant in a suit for partition. the final decree passed therein is challenged in a.s. no. 79/2012 on the file of the court of the district judge of manjeri by the petitioner. the petitioner has sought a stay of further proceedings in e.p. no. 82/2013 filed by the plaintiff and e.p. no. 97/2013 filed by the legal heirs of the third defendant in the appeal. the petitions for stay are posted to 05.02.2014 and the execution petitions stand posted to 31.01.2014.2. the petitioner contends that the preliminary decree among other things take in the property comprised in rs no. 380/5 (and not 380/6) of perakamanna village, ernad taluk. the petitioner laments that the advocate commissioner has however erroneously roped in the property in rs no. 380/6 also in the final decree. the plea in essence is that the property in rs no. 380/6 is not covered by the preliminary decree and hence not 2 wp(c) nos. 206 & 226 of 2014 liable to be taken delivery of in execution. that is a matter to be decided in a.s. no. 79/2012 aforestated wherein the identity of the property could be adverted to.3. the proceedings in e.p. no. 82/2013 and e.p. no. 97/2013 for executing the final decree shall go on as scheduled. but no property in rs no. 380/6 shall be delivered over till orders are passed on the petitions for stay in a.s. no. 79/2012 pending. i direct the court of the district judge of manjeri to dispose of the petitions for stay in a.s. no. 79/2012 expeditiously. every endeavour shall be made to dispose of the stay petitions and consider the entitlement for delivery of the property in rs no. 380/6 on or before 28.02.2014. the original petitions are disposed of. v. chitambaresh judge ncd
Judgment:

IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH TUESDAY, THE28H DAY OF JANUARY20148TH MAGHA, 1935 OP(C).No. 206 of 2014 (O) -------------------------- AGAINST THE ORDER

IN EP NO. 82/2013 IN IA NO. 1434/2001 IN OS NO. 389/1993 OF THE COURT OF THE SUBORDINATE JUDGE, MANJERI PETITIONER(S): -------------------------- M. SIRAJUDHEEN, S/O. ALAVI MANNINGALCHALI HOUSE VALAMANGALAM DESOM PULPATTA,ERNAD TALUK MALAPPURAM DISTRICT. BY ADVS.SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENT(S): ---------------------------- 1. KODITHODIKA AMINAKUTTY D/O. MAMMADKUTTY PAYYANAD AMSOM DESOM ERNAD TALUK, MALAPPURAM DISTRICT676122.

2. KODITHODY VEERANKUTTY HAJI S/O. MAMMAD KUTTY KARAKUNNU AMSOM DESOM ERNAD TALUK, MALAPPURAM DISTRICT676123.

3. PATHUMMUKUTY,W/O. KODITHODY AHAMMEDKUTTY HAJI, THRIKKALANGODE AMSOM, ANANGOTTUPURAM ERNAD TALUK, MALAPPURAM DISTRICT676121.

4. PUTHANVEETTIL AHAMMEDKUTTY S/O. ALAVIKUTTY, PERAKAMANNA ERNAD TALUK, MALAPPURAM DISTRICT676541.

5. PUTHANVEETTIL UNNI HYDRU, S/O. ALAVIKUTTY PERAKAMANNAAMSOM DESOM, ERNAD TALUK MALAPPURAM DISTRICT676541.

6. CHERIYALACHETH HAMZA HAJI, S/O. MOIDEEN HAJI VALAMANGALAM AMSOM, PULPATTADESOM ERNAD TALUK, MALAPPURAM DISTRICT676126. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON2801-2014, ALONG WITH OP(C) NO. 226/2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 206/2014 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1 : TRUE COPY OF THE JUDGMENT

DATED2402.2012 IN OP(C) NO. 3980/2011 OF THIS HONOURABLE COURT. EXHIBIT P2 : TRUE COPY OF THE FINAL ORDER

IN IA NO. 1434/2001 IN OS NO. 389/1993 OF THE SUB COURT, MANJERI DT. 31.07.2012. EXHIBIT P3 : TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER AND ANOTHER BEFORE THE DISTRICT COURT, MANJERI AS APPEAL SUIT NO. 79/2012 DATED2809.2012. EXHIBIT P4 : TRUE COPY OF THE EXECUTION PETITION NO. 82/2013 FILED BEFORE THE SUB COURT, MANJERI DATED2506.2013. EXHIBIT P5 : TRUE COPY OF THE IA NO. 1030/2012 FILED IN AS NO. 79/2012 BEFORE THE DISTRICT JUDGE, MANJERI. RESPONDENT(S) EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE. V. CHITAMBARESH, J -------------------------------- OP(C) NOS. 206 & 226 OF2014------------------------------------ Dated this the 28th day of January, 2014 JUDGMENT

The petitioner in both these Original Petitions is the sixth defendant in a suit for partition. The final decree passed therein is challenged in A.S. No. 79/2012 on the file of the court of the District Judge of Manjeri by the petitioner. The petitioner has sought a stay of further proceedings in E.P. No. 82/2013 filed by the plaintiff and E.P. No. 97/2013 filed by the legal heirs of the third defendant in the appeal. The petitions for stay are posted to 05.02.2014 and the execution petitions stand posted to 31.01.2014.

2. The petitioner contends that the preliminary decree among other things take in the property comprised in RS No. 380/5 (and not 380/6) of Perakamanna village, Ernad taluk. The petitioner laments that the Advocate Commissioner has however erroneously roped in the property in RS No. 380/6 also in the final decree. The plea in essence is that the property in RS No. 380/6 is not covered by the preliminary decree and hence not 2 WP(C) Nos. 206 & 226 of 2014 liable to be taken delivery of in execution. That is a matter to be decided in A.S. No. 79/2012 aforestated wherein the identity of the property could be adverted to.

3. The proceedings in E.P. No. 82/2013 and E.P. No. 97/2013 for executing the final decree shall go on as scheduled. But no property in RS No. 380/6 shall be delivered over till orders are passed on the petitions for stay in A.S. No. 79/2012 pending. I direct the court of the District Judge of Manjeri to dispose of the petitions for stay in A.S. No. 79/2012 expeditiously. Every endeavour shall be made to dispose of the stay petitions and consider the entitlement for delivery of the property in RS No. 380/6 on or before 28.02.2014. The Original Petitions are disposed of. V. CHITAMBARESH JUDGE ncd