IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).No. 25186 of 2010(O) -------------------------- AS.62/2009 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: --------------- CHANDRAN,AGED 69, S/O.KAREKAT VELUKUTTY, ELTHURUTHU DESOM, METHALA VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENTS: --------------- 1. SHILAPPAN, S/O. MULLANGATH KOCHURAMAN, METHALA VILLAGE AND DESOM,KODUNGALLUR TALUK 680664. 2. PARAKASHAN, S/O. MADTHINGAL APPUTTY, ERIYAD VILLAGE - DESOM, KODUNGALLUR TALUK 680664. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.25186 of 2010 --------------------------------------- Dated this 11th day of August, 2010 JUDGMENT Petitioner is the appellant in A.S.No.62 of 2009 of the court of learned Additional Sub Judge, Irinjalakkuda. That appeal arose from judgment and decree in O.S.No.430 of 2007. That is a suit filed by the petitioner against respondents to set aside a sale deed and for prohibitory injunction. In the course of the trial petitioner filed application to depute an Advocate Commissioner to ascertain whether house belonging to the wife of petitioner is also involved in the document sought to be cancelled. Commissioner reported that measurement of the property with the help of a surveyor is required to ascertain the said matter. Petitioner filed I.A.No.17 of 2009 in the trial court to measure the property with the assistance of Taluk surveyor. That application was dismissed. Later the suit also was dismissed which is under challenge in A.S.No.62 of 2009. In the appeal petitioner filed I.A.No.2598 of 2009 to appoint an Advocate Commissioner to measure the property with assistance of a Surveyor. That application was dismissed vide Ext.P3, order stating that order dismissing I.A.No.17 of 2009 was not further pursued by the petitioner and that appellate court cannot allow the W.P.C.No.25186 of 2010 : 2 : application under Order 26 Rule 9 of the Code of Civil Procedure. It is contended by learned counsel that Ext.P3, order is not sustainable and that appellate court can in appropriate cases call for report of the Advocate Commissioner particularly,in this case as trial court refused to appoint an Advocate Commissioner for measurement of the property as prayed for in I.A.No.17 of 2009. 2. Petitioner had moved the trial court with an application (I.A.No.17 of 2009) to depute an Advocate Commissioner to measure property with assistance of Taluk Surveyor. Attempt was to show that even the house belonging to petitioner' s wife and situated in another item of property was included in the document sought to be set aside. Trial court was pleased to set aside I.A.No. 17 of 2009 which, learned counsel for petitioner tells me is in challenge in A.S.No.62 of 2009. Appellate court is to consider while deciding A.S.No.62 of 2009 whether dismissal of I.A.No.17 of 2009 was legal and correct. Certainly, petitioner having raised a challenge to the dismissal of I.A.No.17 of 2009 in the appeal, it is open to the petitioner to canvas that point in the appeal notwithstanding Ext.P3, order. Ext.P3, order will be confined only to the disposal of I.A.No.2598 of 2009. If ultimately while deciding A.S.No.62 of 2009 appellate court is satisfied that dismissal of I.A.No.17 of 2009 was not proper and measurement of the property W.P.C.No.25186 of 2010 : 3 : as prayed for therein was essential, it is open to the appellate court to issue appropriate consequential orders. There is no reason why at this stage I should interfere with Ext.P3, order. Hence without prejudice to the right of petitioner to challenge correctness of the dismissal of I.A.No.17 of 2009 (if such a contention has been urged in the memorandum of appeal) this writ petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-