IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 OP(C).No. 568 of 2011(O) ----------------------------------- [AS.NO.116/2009 OF ADDITIONAL SUB COURT, IRINJALAKUDA, OS.NO.1727/2007 OF PRL.MUNSIFF COURT, IRINJALAKUDA] .................... PETITIONER: ------------------- SANTHA, W/O.VATHYATTIL ARAVINDHAN, MURIYAD VILLAGE-DESOM, MUKUNDAPURAM TALUK. BY ADVS. SRI.G.SREEKUMAR (CHELUR), SRI.K.RAVI (PARIYARATH) RESPONDENTS: ------------------------ 1. VALLIKUTTY, W/O.VATHYATTIL APPUKUTTAN, MURIYAD VILLAGE-DESOM, MUKUNDAPURAM TALUK - 680 694. 2. PANKAJAM, D/O.VATHYATTIL APPUKUTTAN, MURIYAD VILLAGE-DESOM, MUKUNDAPURAM TALUK- 680 694. 3. GIRIJA, D/O.VATHYATTIL APPUKUTTAN, MURIYAD VILLAGE-DESOM, MUKUNDAPURAM TALUK- 680 694. 4. UNNIKRISHNAN, S/O.VATHYATTIL APPUKUTTAN, MURIYAD VILLAGE-DESOM, MUKUNDAPURAM TALUK- 680 694. 5. ARAVINDHAN, S/O.VATHYATTIL GOVINDHAN, MURIYAD VILLAGE-DESOM, MUKUNDAPURAM TALUK- 680 694. 6. GOVINDHAN, S/O.VATHYATTIL GOVINDHAN, MURIYAD VILLAGE-DESOM, MUKUNDAPURAM TALUK- 680 694. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. HARUN-UL-RASHID,J. ------------------------------- O.P.(C). NO. 568 OF 2011 ------------------------------- DATED THIS THE 9TH DAY OF FEBRUARY, 2011 JUDGMENT The 3rd defendant in O.S.No.1727/2007 on the file of the Principal Munsiff's Court, Irinjalakuda is the petitioner herein. The suit was filed by the legal heirs of one Appukuttan claiming 1/3 share in the plaint schedule property. The petitioner pointed out that the share of the plaintiffs was already conveyed by their father Appukuttan in favour of defendants 1 and 2, who are none other than the brothers of Appukuttan. Subsequently, the entire right in the plaint schedule property, which consists of the share of Appukuttan and defendants 1 and 2 was conveyed in favour of the 3rd defendant, who is the petitioner herein. Therefore, it is contended that the plaint schedule property is not partible. The learned counsel for the petitioner submitted that it is without noticing the fact that the entire rights were transferred in the name of the petitioner herein that the decree was passed. Petitioner filed -2- O.P(C).No.568/2011 A.S.No.116/09 before the Additional Sub Court, Irinjalakuda. The said appeal is pending consideration. The Appellate Court passed an interim order staying passing of the final decree. This original petition s filed seeking to set aside Exts.P3 and P4 orders passed by the Appellate Court in A.S.No.116/09 and in O.S.No.1727/07 respectively. Ext.P3 is the order passed by the Appellate Court staying passing of final decree. Ext.P4 is the order passed by the Principal Munsiff's Court directing the Commissioner to file a report. Ext.P3 is the order dated 16th November, 2009 passed by the Appellate Court. If any modification is required, it is for the appellant (petitioner herein) to move the Appellate Court or appropriate reliefs. There is no justification for challenging Ext.P3 order at this stage. Since the passing of the final decree alone is stayed, the Principal Munsiff is justified in deputing a Commissioner for measuring the plaint schedule property. In the circumstances, this Court is not inclined to interfere with Exts.P3 and P4 orders. in the light of the submission -3- O.P(C).No.568/2011 made by the learned counsel for the petitioner that the rights of plaintiffs and defendants 1 and 2 have already been assigned in favour of the appellant. Since the limited prayer is to dispose of the appeal within a time to be fixed by this Court, I think that the original petition can be disposed of without issuing notice to the respondents. In the circumstances, the original petition is disposed of with a direction to the Additional District Court, Irinjalakuda to hear and dispose of A.S.No.116/2009 on or before 31st March, 2011. HARUN-UL-RASHID, Judge. kcv.