IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 FAO.No. 245 of 2008 --------------------- ( AGAINST THE ORDER DATED 26/03/2008 IN IA 2723/07 IN OS.252/2007 of ADDL.SUB COURT,KOTTAYAM ) APPELLANT/ PETITIONER/DEFENDANT: ---------------------------------------------------------- PRASAD.P.MATHEW, AGED 51, S/O.LATE MATHAI MATHAI, RESIDING AT.BETHEL PUTHENPURAYIL, NEDUMKUZHI, VELLOOR P.O.,PAMPADY VILLAGE, KOTTAYAM DIST.,EARLIER RESIDING AT.PUTHENPURAYIL THEKKEPARAMBIL HOUSE, VAZHOOR P.O., VAZHOOR VILLAGE, CHANGANACERRY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER SHERLY KURIEN,W/O.PRASAD MATHEW, PUTHENPURAYIL, VELLOOR P.O., PAMPADY, KOTTAYAM DISTRICT. BY ADV. SRI.C.HARIKUMAR ADV. SRI.VIZZY GEORGE KOKKAT ADV. SRI.ARAVINDA KUMAR BABU T.K. RESPONDENT(S): COUNTER PETITIONERS/PLAINTIFFS: ---------------------------------------------------------------------------------- 1. SARAMMA MATHAI, AGED 81, W/O.LATE MATHAI MATHAI, RESIDING AT PUTHENPURAYIL THEKKEPARAMBIL HOUSE, VAZHOOR P.O., VAZHOOR VILLAGE, CHANGANACHERRY TALUK. 2. SHERLY TOMY, AGED 46, D/O.LATE MATHAI MATHAI, NOW RESIDING AT TEEMPALANGADU HOUSE, KARIKOTTOOR P.O., PONTHANPUZHA, MANIMALA VILLAGE, KANJIRAPPALLY TALUK, AND WAS EARLIER RESIDING AT PUTHENPURAYIL THEKKEPARAMBIL HOUSE,VAZHOOR P.O.,VAZHOOR VILLAGE CHANGANACHERRY TALUK. 3. ABRAHAM.P.MATHEW, AGED 42, S/O.LATE MATHAI MATHAI, PUTHENPURAYIL THEKKEPARAMBIL HOUSE,VAZHOOR P.O.,VAZHOOR VILLAGE CHANGANACHERRY TALUK. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T. SANKARAN, JJ. ........................................................................ F.A.O. No. 245 OF 2008 ......................................................................... Dated this the 7th October, 2008 J U D G M E N T K.T. Sankaran, J: This appeal is filed against the order in I.A.No. 2723 of 2007 on the file of the court of the Additional Sub Judge, Kottayam, by which the application filed by the defendant for appointment of a Receiver was dismissed by the court below. 2. The suit was filed by the respondents claiming partition. The only contesting respondent is the appellant. The respondents never stated that the properties are not partible. In fact they wanted partition. It is an admitted fact that the respondents are in possession of the property. The appellant/defendant is working abroad. The first respondent, mother is a cancer patient. There is no dispute regarding the same. A portion of the income from the property is being utilized for her treatment. It is not established that the property is otherwise being wasted or damaged by any of the acts of the respondents. There is one item of property which is not included in the plaint schedule. Appellant's father's brother is residing in that item of F.A.O. No. 245 OF 2008 2 property. It is stated by the respondents in the plaint that they would be resorting to a relief for partition of that item at a later point of time, since they do not want to disturb the brother of late Mathai Mathai, the predecessor in interest of the parties. The court below noticed all these facts including the fact that the major portion of the properties would go to the plaintiffs on partition. All the relevant facts were considered by the court below and held that this is not a fit case where a receiver should be appointed. On going through the facts of the case, we are of the view that the order passed by the court below is legal, proper and just. No interference is called for in this appeal. The appeal is devoid of merit and is accordingly dismissed. KURIAN JOSEPH, JUDGE. K.T. SANKARAN, JUDGE. lk