IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 OP(C).NO. 480 OF 2010(O) ------------------------------------- CMA.5/2008 OF SUB COURT, PAYYANNUR OS.274/2007 OF MUNSIFF COURT, THALIPARAMBA .................... PETITIONER: -------------------- VELLOORIDATHIL THAZHATHIDATHIL THARAWAD MEMBERS, REPRESENTED BY DAMODHARAN NAYANAR, S/O.MAAKKI AKKANAMMA, RETIRED HEAD MASTER, RESIDING AT "PUTHIYA MADAM",PAYYAVOOR AMSOM DESOM, PAYYAVOOR PO,TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.SAJU.S.A SRI.K.C.KIRAN RESPONDENT(S): ------------------------ 1. M.KRISHNAN,S/O.KANNAN, "SOUPARNIKA", VALANNOOR,CHELORA AMSOM DESOM. 2. M.PURUSHOTHAMAN, S/O.KORAN, "SREERA NIVAS",THALAP,PALLIKKUNNU AMSOM DESOM, KANNUR-670 004. 3. VELLOORIDATHIL THAZHATHIDATHIL KUNHIRAMAN @ KRISHNAN NAYANAR, S/O.MAAKKI AKKANAMMA, MALAPPATTOM AMSOM, CHOOLIYAD DESOM, KANNUR,PIN-670 631. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.480 of 2010 ==================================== Dated this the 28th day of October, 2010 J U D G M E N T This petition arises from Ext.P9, judgment in C.M.A. No.5 of 2008 of the court of learned Sub Judge, Payyannur appointing one of parties to the litigation as the Receiver for performance of the religious ceremonies and management of 'Madappura' situated in the suit property. Petitioner-plaintiff filed O.S. No.274 of 2007 in the court of learned Munsiff, Taliparamba against respondents for recovery of possession of property on the strength of title and moved I.A. No.1775 of 2007 for appointment of a Receiver for the conduct of religious ceremonies and management of 'Madappura'. That application was opposed by the contesting respondents claiming that petitioner has no right over the property and respondent No.2-defendant No.2 is performing religious ceremonies as 'Madayan'. Trial court held that the only contention petitioner has raised is that respondent No.2 does not possess much experience to be the 'Madayan' and is getting religious ceremonies done through another person (also called as 'Madayan'). Learned Munsiff found from Exts.B1 to B16 (marked O.P(C) No.480 of 2010 -: 2 :- in the trial court) that respondent No.2 is functioning as 'Madayan' and hence it is not just or convenient to appoint a Receiver as requested by petitioner. Application was dismissed. Petitioner took up the matter in appeal. Appellate court found that there appears to be a scramble for possession of property and performance of the religious ceremonies. But the appellate court did not disturb the finding of the trial court that as on the date of suit respondent No.2 was performing religious ceremonies. Learned Senior Advocate for petitioner admitted before the appellate court that respondent No.2 was functioning as 'Madayan'. Appellate court held that on the facts and circumstances it is just and convenient to appoint one of the parties as Receiver and taking into account the circumstances stated above as well as the submission made by counsel for petitioner that at least at that time respondent No.2 was functioning as 'Madayan' it was only proper to prefer respondent No.2 to the petitioner and appoint him as the party Receiver. Learned Senior Advocate appearing for petitioner contended that respondent No.2 is inexperienced to perform religious ceremonies and that appellate court ought to have preferred petitioner to respondent No.2 for appointment as party Receiver. O.P(C) No.480 of 2010 -: 3 :- 2. Appellate court has found that it is just and convenient to appoint a party Receiver and that is not under challenge. Only question is whether petitioner should have been preferred to respondent No.2. Appellate court has stated reasons for appointing respondent No.2 as the party Receiver which included the fact that at least on the date appellate court passed the impugned order, respondent No.2 was performing religious ceremonies at the 'Madappura'. Apart from the alleged inexperience no disqualification was pointed out by the petitioner for respondent No.2. Appellate court has exercised the discretion to appoint respondent No.2 as the party Receiver. There is no jurisdictional error, illegality or infirmity in the discretion exercised by the learned Sub Judge calling for interference under Article 227 of the Constitution. Original Petition fails. It is accordingly dismissed. THOMAS P. JOSEPH, JUDGE. vsv