IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 OP(C).No. 642 of 2011(O) ------------------------ OS.200/2003 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER ------------------------------ C.V.JOHN @ JOHNY, AGED 71 YEARS, S/O.LATE VARKEY, CHATHAMKANDAM HOUSE, KAVUNKARA KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.ADEEP ANWAR SRI.ARJUN.S.RAJ RESPONDENT(S): --------------- 1. C.V.PAUL, S/O. VARKEY, CHANTHAMKANDAM HOUSE, MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 2. SHELLA W/O. ANTONY, CHATHAMKANDAM HOUSE, OLLOOR KARA, OLLOOR VILLGE, THRISSUR TALUK, THRISSUR DISTRICT. ADV. SRI.V.M.KURIAN FOR R1-2 SRI.MATHEW B. KURIAN FOR R1-2 SRI.K.T.THOMAS FOR R1-2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 642 of 2011(O) PETITIONER'S EXTS: EXT.P1: COPY OF ORDER IN IA NO.2235/2010 IN OS NO.200/2003 SEEKING PERMISSION ON THE FILES OF MUNSIFF'S COURT. EXT.P2: COPY OF ORDER DTD.1.11.2010 IN OP © NO.296/2010 OF THIS COURT. EXT.P3: COPY OF DIRECTION PETITION IN IA NO.264/2011 IN OS NO.200/2003 OF MUNSIFF COURT. EXT.P4: COPY OF ORDER DTD.25.1.2011 IN IA NO.264/2011 IN IA NO.1956/2006 IN OS NO.200/2003 OF MUNSIFF COURT. RESPONDENTS EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------------ O.P(C)No.642 OF 2011 ------------------------------------ Dated this the 28th day of June, 2011 JUDGMENT In the suit for partition filed by the respondents as O.S.No.200 of 2003, Munsiff's Court, Muvattupuzha, a preliminary decree for partition was passed in respect of two items of property. I.A.No.1956 of 2006 was filed for passing the final decree. A Commissioner was appointed to partition the properties by metes and bounds. The Commissioner reported that it is not feasible to divide the properties by metes and bounds. The Commissioner suggested sale of the properties. The plaintiffs filed I.A.No.494 of 2007 to conduct the sale in public auction. At that juncture, the defendant filed I.A.No.503 of 2008 under Section 3 of the Partition Act to permit him to purchase the rights of the other sharers. The plaintiff filed I.A.No.631 of 2008 to value the share of the defendants and to sell the properties to the plaintiff. 2. The court below appointed a Commissioner to value the properties. The Commissioner valued item No.1 at `61.8 lakhs and item No.2 at `6 lakhs. The court also directed an auction to be conducted O.P(C)No.642 OF 2011 2 among the sharers. That order was challenged by the defendant in A.S.No.60 of 2009 before the Sub Court, Muvattupuzha. The Appellate Court allowed the appeal in part and the direction to sell the property among the sharers was set aside. The Appellate Court also held that the valuation made by the Commissioner and approved by the Court was correct and that the property should be sold to the defendant at that valuation. That judgment was challenged by the defendant in C.R.P.No.418 of 2010 to the extent it relates to the valuation. The High Court in CRP No.418 of 2010 upheld the valuation. However, three months' time was granted to the defendant to deposit the sale price. 3. Thereafter, the defendant filed I.A.No.2235 of 2010 to permit him to mortgage the properties for the purpose of raising funds to deposit the amount. That application was dismissed by the trial court, against which OP(C)No.296 of 2010 was filed by the defendant. This court granted two months' time to deposit the amount. That order was complied with by the defendant. 4. I.A.No.264 of 2011 was filed by the defendant to allot the properties in his favour and to direct the Advocate Commissioner to measure out item No.2 and also to deliver the same to him. There was also a prayer to effect symbolic delivery of item No.1 to the defendant. The court O.P(C)No.642 OF 2011 3 below, by the order dated 25th January, 2011 dismissed I.A.No.264 of 2011 on the ground that the prayer in the application can be considered only after the issue of sale certificate to the defendant. The order in I.A.No.264 of 2011 is under challenge in this Original Petition. 5. The facts are not disputed. The petitioner is entitled to get the sale certificate. The properties should be delivered to him. The prayer for effecting delivery was rejected on the ground that the sale certificate was not issued. It was not necessary for the Executing Court to dismiss I.A.No.264 of 2011. The application could be considered after issue of the sale certificate. It was not necessary to drive the petitioner to file another application after issue of the sale certificate. Accordingly, the order dated 25th January, 2011 is set aside. The court below shall keep alive I.A.No.264 of 2011 and pass orders immediately after issue of the sale certificate. 6. The learned counsel appearing for the respondents submitted that they are entitled to withdraw the amount deposited by the petitioner/defendant. The learned counsel for the petitioner/defendant submitted that the respondents cannot be allowed to withdraw the amount at any time before the issue of sale certificate to the petitioner/defendant. This submission is just and reasonable. Simultaneously on the issue of the sale certificate in favour of the petitioner/defendant, appropriate orders O.P(C)No.642 OF 2011 4 shall be passed by the court below for releasing the amount in deposit to the respondents/plaintiffs. The court below shall expedite the proceedings for issue of sale certificate, avoiding unnecessary delay. The Original Petition is disposed of as above. K.T.SANKARAN, JUDGE. cms