IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 WP(C).No. 7908 of 2008(N) ------------------------------------- O.S.897/1995 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM. .................... PETITIONERS: --------------------- 1. VALSAMMA KURIAN, AGED 57, W/O.LATE JOSE VALOORAN, ADVOCATE, VALOORANS, EDAPALLY, KOCHI-24, NOW RESIDING AT VALOORANS, KOTTAKADAVU ROAD, ALUPURAM P.O., ELOOR. 2. JOHNEY.V.J., AGED 28, S/O.LATE JOSE VALOORAN, VALOORANS, EDAPALLY, KOCHI-24, ALUPURAM P.O., ELOOR. 3. HONEY.J.VALOORAN, AGED 23, D/O.LATE JOSE VALOORAN, VALOORANS, EDAPALLY, KOCHI-24, NOW RESIDING AT VALOORANS, KOTTAKADAVU ROAD, ALUPURAM P.O., ELOOR. BY ADV. SRI.P.V.GEORGE(PUTHIYEDAM). RESPONDENTS: ----------------------- 1. ST.RAPHEAL CHURCH, VYTTILA DESOM, POONITHURA VILLAGE, REPRESENTED BY PARISH VICAR AND KAIKARS. 2. FR.ZACHARIAS PAVANATHARA, AGED 48, S/O.JOSEPH PAVANATHARA, VICAR, ST.RAPHELS CHURCH, THYKOODAM. 3. FRANCE KOTTAMPLACKEL, AGED 66, S/O.OUSEPH KOTTAMPLACKAL, KACHAPILLY ROAD, VYTTILA, KAIKAR, ST.RAPHEL'S CHURCH, THYKOODAM. 4. MANUEL THIRUNITH ALIAS NELSON, AGED 48, S/O.ANTONY, THIRUNITH HOUSE, CHILAVANNUR, KAIKARAN, ST.RAPHEAL CHURCH, THYKOODAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 7908 OF 2008 = = = = = = = = = = = = = = = Dated this the 7th day of March, 2008. J U D G M E N T This writ petition is preferred with a prayer to set aside the order passed by the Munsiff, Ernakulam in E.A.913/07 in E.P.404/04 in O.S.897/95. The tenant in a suit for eviction moved an application claiming damages on the ground the machinery which has been handed over by the Amin to the decree holder has been destroyed and therefore he is entitled to damages. The Court below appointed a Commissioner with the assistance of an expert who is a senior lecturer in Mechanic Engineering Division of the Cochin University. The learned counsel for the writ petitioner has made available before me the evidence given by the expert in cross- examination. Naturally the machinery has to be dismantled and stored in some place when a decree is put into execution. That has been done. The judgment debtor did not take care to receive the machinery. So the Amin was W.P.C 7908 OF 2008 -:2:- forced to entrust it to the decree holder. It is thereafter the judgment debtor applies for damages sustained to the machinery. The Court below in right earnestness had appointed a Commissioner with the assistance of an expert to assess the damages and to submit a report. 2. The principle grievance ventilated is that one cannot testify the working capacity of the machine unless it is reassembled and put into use. There is some force in that contention. The Court below also took note of that situation and thereafter it give direction to the judgment debtor to provide necessary workmen and mechanic for assisting expert to ascertain that the machinery can be reassembled and that it can be reused. When such an inspection is conducted there will be finality to the grievance of the party. There is no point in issuing another Commission at this stage and he will also have the same difficulty faced by this Commissioner and the expert. I do not find any personal allegations levelled against the Commissioner or the expert. So what is required is collection of adequate data. It can be W.P.C 7908 OF 2008 -:3:- done by the Commissioner with the help of an expert. If anything more than what is stated by the executing Court is necessary I permit the writ petitioner herein to file a work memo through Court to the Commissioner so that the Court can hear and direct the Commissioner to look into those aspects as well. With this observation, this writ petition is disposed of. M.N. KRISHNAN, JUDGE. ul/-