Beena vs Nil - Court Judgment

SooperKanoon Citationsooperkanoon.com/1396656
CourtKerala High Court
Decided OnOct-13-2023
Case NumberOP(C)/2163/2023
JudgeHonourable Mr. Justice Devan Ramachandran
AppellantBEENA
RespondentNIL
Excerpt:
in the high court of kerala at ernakulampresent the honourable mr. justice devan ramachandran friday, the 13th day of october 2023 / 21st aswina, 1945 op(c) no. 2163 of 2023 against the order/judgment opgw 12/2020 of district & sessions court, alappuzha petitioners/petitioners:1 beena aged 52 years, w/o late george, kappolaveliyil, maruthorvattom muri, thannermukkom north village, cherthala taluk, alappuzha distric, pin - 688527 2 jobby george aged 23 years, s/o late george, maruthorvattom muri, thannermukkom alappuzha district, pin - 68852 3 bijoy george aged 18 years, s/o late george, maruthorvattom muri, thannermukkom alappuzha district, pin - 68852 4 josna george aged 11 years, d/o late george, maruthorvattom muri,thannermukkom alappuzha district, 688527 represented by mother beena, aged 52 years, w/o late george, kappolaveliyil, maruthorvattom muri, thannermukkom north village, cherthala taluk, alappuzha district, pin - 688527 by adv. sri.t.v.jayakumar namboodirirespondents: nil this op (civil) having come up for admission on 13.10.2023, the court on the same day delivered the following: :2:devan ramachandran, j.========================= ========================== dated this the 13th day of october, 2023judgmentthe petitioners impugn ext.p5 order of the learned district judge, alappuzha, whereby, a condition imposed in ext.p1 order, namely, that another property be purchased with the share eligible to the minors, after sale of the property in question, be vacated. they explain that, earlier a sale agreement was entered into by them with certain sri.shine mohan, who, however, withdrew; and that thereafter, a person by name sri.shafeek has been identified, who has agreed to purchase the property for the same sale consideration as earlier offered. they say that this has been, in fact, allowed through ext.p3 order; but that when they moved the learned district judge, for modification of the afore mentioned condition in ext.p1, it has been rejected through ext.p5, presumably being under the wrong impression that the proposed sale is still with the earlier purchaser - sri.shine mohan, without noticing that it is, in fact, with sri.shafeek, whose offer has been allowed to be considered through ext.p3 order itself. :3:2. sri.jayakumar namboodiri t.v. - learned counsel for thepetitioners, further submitted that no prejudice would be caused to the minors with the prayer made by his clients in ext.p4 application, but that on account of the afore misdirection, the learned district judge did not consider it in its proper perspective but has issued ext.p5. he, therefore, prayed that ext.p5 be set aside.3. when one examines ext.p5, it is rendered luculent thatthe learned district judge cannot be found fault with because, what was sought to be modified by the petitioners was one of the conditions in ext.p1 order, which was with respect to the sale of the property, on the basis of an agreement entered into by the petitioners with a person by name, sri.shine mohan. however, this sale did not, admittedly, materialise, as has been correctly found by the learned district judge; but the petitioners then found out another person by name sri.shafeek and moved ext.p2 application, which was allowed through ext.p3 order.4. obviously, therefore, the learned district judge ought tohave considered the subsequent application of the petitioners, namely, ext.p4, in such perspective. in the afore circumstances, i allow this original petition :4: and set aside ext.p5; with a consequential direction to the learned district judge to reconsider ext.p4, adverting to ext.p3 order, thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. sd/- devan ramachandran judge anm :5: appendix of op(c) 2163/2023 petitioner exhibits exhibit-p-1 true copy of the order dated 09.10.2020 of district court, alappuzha in op(g&w) exhibit-p-2 true copy of the i.a 1/2022 dated 11.02.2022 in op(g&w) 12/20 before the district court, alappuzha exhibit-p-3 true copy of the order in i..a 1/2022 by the district court, alappuzha dated 21.02.2022 exhibit-p-4 true copy of the i.a 2/2022 in op(g&w0 alappuzha exhibit-p-5 true copy of the order dated 02.03.2023 in i.a 2/2022 passed by the district court, alappuzha in op(g&w) 12/20 exhibit-p-6 true copy of the op (g&w) 12/2020 filed before the district court, alappuzha dated nil
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 13TH DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 OP(C) NO. 2163 OF 2023 AGAINST THE ORDER/JUDGMENT OPGW 12/2020 OF DISTRICT & SESSIONS COURT, ALAPPUZHA PETITIONERS/PETITIONERS:

1 BEENA AGED 52 YEARS, W/O LATE GEORGE, KAPPOLAVELIYIL, MARUTHORVATTOM MURI, THANNERMUKKOM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRIC, PIN - 688527 2 JOBBY GEORGE AGED 23 YEARS, S/O LATE GEORGE, MARUTHORVATTOM MURI, THANNERMUKKOM ALAPPUZHA DISTRICT, PIN - 68852 3 BIJOY GEORGE AGED 18 YEARS, S/O LATE GEORGE, MARUTHORVATTOM MURI, THANNERMUKKOM ALAPPUZHA DISTRICT, PIN - 68852 4 JOSNA GEORGE AGED 11 YEARS, D/O LATE GEORGE, MARUTHORVATTOM MURI,THANNERMUKKOM ALAPPUZHA DISTRICT, 688527 REPRESENTED BY MOTHER BEENA, AGED 52 YEARS, W/O LATE GEORGE, KAPPOLAVELIYIL, MARUTHORVATTOM MURI, THANNERMUKKOM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN - 688527 BY ADV. SRI.T.V.JAYAKUMAR NAMBOODIRI

RESPONDENTS: NIL THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :2:

DEVAN RAMACHANDRAN, J.

========================= ========================== Dated this the 13th day of October, 2023

JUDGMENT

The petitioners impugn Ext.P5 order of the learned District Judge, Alappuzha, whereby, a condition imposed in Ext.P1 order, namely, that another property be purchased with the share eligible to the minors, after sale of the property in question, be vacated. They explain that, earlier a sale agreement was entered into by them with certain Sri.Shine Mohan, who, however, withdrew; and that thereafter, a person by name Sri.Shafeek has been identified, who has agreed to purchase the property for the same sale consideration as earlier offered. They say that this has been, in fact, allowed through Ext.P3 order; but that when they moved the learned District Judge, for modification of the afore mentioned condition in Ext.P1, it has been rejected through Ext.P5, presumably being under the wrong impression that the proposed sale is still with the earlier purchaser - Sri.Shine Mohan, without noticing that it is, in fact, with Sri.Shafeek, whose offer has been allowed to be considered through Ext.P3 order itself. :3:

2. Sri.Jayakumar Namboodiri T.V. - learned counsel for the

petitioners, further submitted that no prejudice would be caused to the minors with the prayer made by his clients in Ext.P4 application, but that on account of the afore misdirection, the learned District Judge did not consider it in its proper perspective but has issued Ext.P5. He, therefore, prayed that Ext.P5 be set aside.

3. When one examines Ext.P5, it is rendered luculent that

the learned District Judge cannot be found fault with because, what was sought to be modified by the petitioners was one of the conditions in Ext.P1 order, which was with respect to the sale of the property, on the basis of an agreement entered into by the petitioners with a person by name, Sri.Shine Mohan. However, this sale did not, admittedly, materialise, as has been correctly found by the learned District Judge; but the petitioners then found out another person by name Sri.Shafeek and moved Ext.P2 application, which was allowed through Ext.P3 order.

4. Obviously, therefore, the learned District Judge ought to

have considered the subsequent application of the petitioners, namely, Ext.P4, in such perspective. In the afore circumstances, I allow this original petition :4: and set aside Ext.P5; with a consequential direction to the learned District Judge to reconsider Ext.P4, adverting to Ext.P3 order, thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. Sd/- DEVAN RAMACHANDRAN JUDGE anm :5: APPENDIX OF OP(C) 2163/2023 PETITIONER EXHIBITS Exhibit-P-1 TRUE COPY OF THE ORDER DATED 09.10.2020 OF DISTRICT COURT, ALAPPUZHA IN OP(G&W) Exhibit-P-2 TRUE COPY OF THE I.A 1/2022 DATED 11.02.2022 IN OP(G&W) 12/20 BEFORE THE DISTRICT COURT, ALAPPUZHA Exhibit-P-3 TRUE COPY OF THE ORDER IN I..A 1/2022 BY THE DISTRICT COURT, ALAPPUZHA DATED 21.02.2022 Exhibit-P-4 TRUE COPY OF THE I.A 2/2022 IN OP(G&W0 ALAPPUZHA Exhibit-P-5 TRUE COPY OF THE ORDER DATED 02.03.2023 IN I.A 2/2022 PASSED BY THE DISTRICT COURT, ALAPPUZHA IN OP(G&W) 12/20 Exhibit-P-6 TRUE COPY OF THE OP (G&W) 12/2020 FILED BEFORE THE DISTRICT COURT, ALAPPUZHA DATED NIL