IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 OP(C).No. 1237 of 2010(O) ------------------------- AGAINST THE ORDER DATED 05/10/2010 IN IA.2354/2010 IA.989/1980 IN OS.99/1966 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER/PETITIONER --------------------------------------- ARAVINDAKSHAN, S/O.CHAMI, ALINGAL VEETIL, CHITTILANCHERRY, ALATHUR TALUK. BY ADVS. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENT: ------------------- VASUDEVAN, (WRONGLY SHOWN AS SUDEVAN), S/O.KRISHNAN, KAVALAKKODE VEEDU, THEKKETHARA, ALATHUR. PIN 678101. ADDL.R2 IMPLEADED ------------------------------- DIVAKARAN, S/O.AYYAPPAN, 42/476, MATHEW MANJOORAN ROAD, PACHALAM, ERNAKULAM DISTRICT 682012, HAS BEEN IMPLEADED ADDL. R2 VIDE ORDER DATED 17.3.11 IN IA.2777/11 IN OP(C) 1237/10 BY ADVS. SRI.VIVEK VARGHESE P.J. SRI.V.KRISHNADAS BY ADDL.R2 BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1237 of 2010(O) ------------------------------------ APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE JUDGMENT IN F.A.O. NO.182/2009 ON THE FILE OF THIS HON'BLE COURT DATED 7.8.209. EXT.P2. COPY OF REPORT NO.7/2009 FILED BY ADV. S.M. UNNIKRISHNAN, RECEIVER IN O.S.NO.99.1966 ON THE FILE OF THE SUBORDIATE JUDGE OF PALAKKAD. EXT.P3. COPY OF THE AFFIDAVIT ACCOMPANYING APPLICATION I.A. 2354/2010 IN IA 989/80 IN OS.99/66 FILED BY PETITIONER BEFORE SUB COURT, PALAKKAD DT. 17.7.2010. EXT.P4. COPY OF THE COUNTER FILED BY THE RESPONDENT IN IA 2354/2010 IN IA.989/1980 IN OS.99/1966 DT. 14.9.2010 EXT.P5. COPY OF THE OBJECTION IN I.A. 2354/2010 FILED BY SUPPL. 3RD PETITIONER IN THE FINAL DECREE APPLICATION ON 14.9.2010. EXT.P6. COPY OF ORDER DT. 5.10.2010 IN IA. 2354/2010 IN IA.989/1980 IN OS.99/1966 SUB COURT, PALAKKAD. EXT.P7. COPY OF THE AFFIDAVIT ACCOMPANYING IA NO.771/2009 IN O.S.NO.129/2009 DISTRICT COURT (VACATION JUDGE), PALAKKAD. EXT.P8. COPY OF THE AFFIDAVIT ACCOMPANYING IA. NO.1822/2009 IN FDIA NO.989/1980 IN O.S. 99/1966 PRL. SUB COURT, PALAKKAD. RESPONDENT'S EXHIBITS -------------------------------------- EXT.R1(A). COPY OF FINAL DECREE APPLICATION IA NO.989/80 IN OS NO.99/66 DT.29.3.1980 BEFORE THE SUB COURT, PALAKKAD. EXT.R1(B). COPY OF AUCTION NOTICE OF AUCTION DT. 6.4.09 IN IA.989/90 IN OS NO.99/6. EXT.R1(C). COPY OF COMMON ORDER DT. 22.7.09 BY SUB JUDGE, PALAKKAD IN IA NOS.1822/09 AND 1823/09 IN IA. NO.989/80 IN OS NO.99/66. EXT.R1(D). COPY OF OBJECTION DT. 10.11.09 IN REPORT NO.7/09 IN IA 5011/94 IN FDA NO.989/80 IN OS NO.99/66 OF PRL. SUB COURT, PALAKKAD. EXT.R1(E). COPY OF REPORT NO.5/09 ALONG WITH AUCTION NOTICE DATED 3.8.09. EXT.R1(F). COPY OF PETITION IN IA NO.1222/10 FD IA NO.989/80 IN OS 99/1966 FILED BY THE PETITIONER BEFORE PALAKKAD SUB COURT. EXT.R1(G). COPY OF PETITION IA NO.1080/10 IN FD IA NO.989/80 IN OS 99/66 OF SUB COURT, PALAKKAD. / TRUE COPY / P.A. TO JUDGE VK P.BHAVADASAN, J. ---------------------------- O.P.(c).No. 1237 of 2010 --------------------------------- Dated this the 24th day of March, 2011 JUDGMENT In this O.P(C) is filed under Article 227 of the Constitution of India, the petitioner assails Ext.P6 order whereby his application for withdrawing an amount of Rs.7,60,000/- deposited in court was dismissed. 2. Facts absolutely necessary for the disposal of this original petition are as follows: Petitioner is the 24th respondent in a final decree application in a suit for partition. The total extent of property available for partition would come to more than 80 acres. The properties are in the possession of a Court Receiver, who used to auction the right to cultivate the property. It is an admitted fact that in respect of plots 7,8 and 9, the petitioner was the successful bidder from 2009-2010. The petitioner thereafter removed mud from about 1.50 acres of land to manufacture bricks. The respondent took objection to the conduct of the petitioner and the court ordered the receiver to auction the bricks. That order was challenged in F.A.O 182/2009 before this Court in which the following order was passed: “This is an appeal against an order for sale of the bricks manufactured and kept in the field in lot Nos.7, 8 and 9. In a suit O.P.(c).No. 1237 of 2010 2 for partition receiver was appointed. Agricultural properties were permitted to cultivate by auction and the appellant was the auctioneer for the previous year in question. However, in a portion of the land, he excavated soil and manufactured bricks. This gives rise to a dispute. One of the sharers filed an application alleging that as a result of the action by the appellant damages have been suffered and also pointed out that there was no permission obtained before excavation of soil and manufacture of bricks. The court below after considering the matter ordered that the bricks be sold by public auction through receiver. Hence this appeal. 2. We have heard the parties. 3. Since the application was filed only by the respondent herein, he alone is made a party in the appeal. 4. It is agreed to between the parties that instead of selling the bricks by public auction, the bricks be sold among the sharers by auction by the receiver. Accordingly the order passed by the court below is modified to the limited extent, ie., instead of selling the bricks in public auction, the same shall be sold among the sharers. The appeal is disposed of as above. The appellant contended that he is entitled to the manufacturing cost of the bricks. Since the auction is yet to be conducted, it is open to the parties to raise such contentions before the court below and seek reliefs as to what is the amount to be remitted towards manufacturing cost and also the manner in which the amount should be appropriated.” 3. In pursuance to the order in that FAO, the receiver assessed the expenses incurred for the manufacture of the bricks at an amount of Rs.7,60,000/-. Therefore, the petitioner filed cheque application for the same, in terms of order in FAO. The lower court observing that since final decree petitions are pending on the share is yet to be determined dismissed the petition. 4. Before this court the petitioner pointed out that he has O.P.(c).No. 1237 of 2010 3 incurred expenses for manufacture of bricks. 5. It is a fact that it was in violation of the orders and in contravention of the directions of court and without knowledge of the receiver that the acts were done by the petitioner and this Court had not granted permission to release the expenses so incurred by him. This Court only permitted the parties to seek appropriate reliefs from the Court below. The fact remains that petitioner did incur expenses for the manufacture of bricks. No other person had expended amounts for the same. It is true that final allocation in the partition suit is yet to be made. But it is not necessary to pay the sum of Rs.7,60,000/- in Court and it is felt that it can be released to the petitioner on strict conditions and safeguarding the interest of all parties. In the result, the O.P(C) is allowed. The impugned order is set aside and the petitioner is allowed to withdraw a sum of Rs.7,60,000/- from the court below on furnishing bank guarantee to the satisfaction of the court below. The lower court shall dispose of the execution proceeding as expeditiously as possible, at any rate, within six months after re-opening of the court after summer vacation. The lower court also shall ensure that the commissioner report is obtained as soon as possible. O.P.(c).No. 1237 of 2010 4 P.BHAVADASAN, JUDGE. ln