IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 OP(C).No. 744 of 2011(O) AS.35/2010 OF SUB COURT, OTTAPPALAM PETITIONER: -------------------- KUNHISEETHIKOYA THANGAL, AGED 34 YEARS, S/O.ODAMPULLY PONMACHINTAKATH KUNHIKOYA THANGAL, ITTONAM DESOM, PERINGANNOOR AMSOM, OTTAPPALAM TALUK. BY ADV. SRI.K.SHIBILI NAHA SMT.A.LOWSY RESPONDENTS: --------------- 1. ATTABEEVI, AGED 64 YEARS, D/O.ODAMPULLY PONMACHINTAKATH DECEASED MAMMAYYA BEEVI, PERINKONAM.P.O., PIN-678 542, ITTONAM DESOM, PERINKONAM AMSOM, OTTAPALAM TALUK. 2. CHERIYA BEEVI @ BEEKUNHI BEEVI, AGED 41 YEARS, D/O.HYDROSKOYA THANGAL, PERINKONAM.P.O., PIN-678 542, ITTONAM DESOM, PERINKONAM AMSOM, OTTAPALAM TALUK. 3. KUNHIKOYA THANGAL, AGED 37, ITTONAM DESOM, PERINKONAM AMSOM, OTTAPALAM TALUK,PERINKONAM.P.O., PIN-678 542, . THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 744 OF 2011 O ------------------------------------------------------ Dated this the 22nd day of February, 2011 JUDGMENT O.S.No.63 of 1989 filed by the respondents was decreed by the judgment and decree dated 25.2.2010. As per the decree, the plaintiffs are entitled to 4/7 shares of the income derived from the jaram. Specific provisions have been made in the decree for collection of the amount in the jaram. 2. Against the judgment and decree of the trial court, the petitioner filed A.S.No.35 of 2010 before the Court of the Subordinate Judge of Ottapalam. The appellate court granted an order dated 31.7.2010 staying the execution of the decree on condition that the petitioner/third defendant shall deposit the money portion of the decree before the trial court. Certain other directions were also issued by the appellate court as to locking and opening of hundi and for deposit in Court of the 4/7 portion of the amount collected, representing the share of the plaintiffs. O.P.(C) NO.744 OF 2011 :: 2 :: 3. Thereafter, on the application of the respondents herein as I.A.No.234 of 2011, the appellate court passed an order dated 27.1.2011 appointing a Commissioner for the conduct of the 'Nercha' in the jaram. Specific directions have been issued as to how the collections in kind should be dealt with. The Commissioner was authorized to auction certain types of offerings and for deposit of the amount in court. The Commissioner was also directed to deposit the collections from the hundi before Court. The appellate court also held that the plaintiffs who are entitled to 4/7 shares of the income can collect the same from the Court. Similar relief was also granted to all the sharers. The order dated 27.1.2011 is challenged in this Original Petition. 4. Sri.K.Shibili Naha, learned counsel for the petitioner contended that the order dated 27.1.2011 is quite contrary to the stay order dated 31.7.2010 and, therefore, the latter order is liable to be struck down. It is also submitted that if the amounts representing the 4/7 shares of the plaintiffs are withdrawn by the plaintiffs and if the appeal is ultimately allowed, the petitioner would be put to great hardship. O.P.(C) NO.744 OF 2011 :: 3 :: 5. The contention that the order impugned is contrary to the order dated 31.7.2010 in I.A.No.928 of 2010 is not correct. Even as per the order dated 31.7.2010, the court below directed deposit of the 4/7 shares of the plaintiffs in Court. As per the present order, the court directed the disbursement of the amount to the plaintiffs. It is not at all against the previous order. On the other hand, it is an order which flows from the previous order. The contention that if the amount is disbursed to the plaintiffs the petitioner would be put to great hardship also cannot be countenanced. The trial court held that the respondents herein are entitled to 4/7 shares. There is already a direction to deposit that amount in Court. There is no meaning in saying that the amount should be deposited and it should be allowed to accumulate and at the same time, the respondents should not be allowed to enjoy the fruits of the decree. The order passed by the court below is right, legal and proper. There is no ground for interference under Article 227 of the Constitution of India. The Original Petition is, therefore, dismissed. (K.T.SANKARAN) Judge ahz/