IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 32118 of 2007(Y) ------------------------------------ OS.99/2004 of II ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): ------------------------- 1. SEELAS, AGED 75, S/O MASILLAMANI, KARINGAL CHEETTUVILA, MARANALLOOR DESOM, DO VILLAGE. 2. AMMUKUTTY, AGED 72 YEARS, D/O SNEHAPPU, -DO-. BY ADVS.MR.R.T.PRADEEP MR.V.VIJULAL RESPONDENT(S): -------------------------- 1. LEELA KUMARI, D/O YONA, AGED 35, CHETTUVILA VEEDU, KARINGAL, MARANALLOOR DESOM, DO. VILLAGE. 2. SREE KUMARI, AGED 36, D/O YONA, -DO-. 3. SUNDARI, W/O GABRIEL, AGED 50, -DO- -DO- 4. BABY, D/O SUNDARI, RESIDING AT -DO- -DO-. 5. SANTHA, D/O SUNDARI, RESIDING AT -DO- -DO-. 6. LILLY, D/O SUNDARI, RESIDING AT -DO- -DO-. 7. RABI, S/O GABRIEL, RESIDING AT -DO- -DO-. W.P.(C) NO.32118/2007 8. MANIYAN, S/O CHELLAMMA, RESIDING AT -DO- -DO-. 9. RAJU, S/O CHELLAMMA, RESIDING AT -DO- -DO-. 10. MARIYAMMA, AGED 70, W/O AVIASAR, SUMATHY NIVAS, CHARUVILA, KADAMKULANGARA, KOOVALASSERY P.O., MARANALLOOR VILLAGE. 11. SANTHI, AGED 40, D/O MARIYAMMA, -DO- -DO- 12. PRAMEELA, AGED 38, D/O MARIYAMMA, -DO- -DO- 13. SASI, AGED 36, S/O AVIASAR, -DO-. 14. GEETHA, AGED 34, D/O MARIYAMMA, -DO-. 15. PRASAD, AGED 32, S/O AVIASAR, -DO-. ADV. SRI.R.S.KALKURA FOR R10 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No. 32118 OF 2007 -------------------------- Dated this the 5th day of August 2009 ------------------------------------- JUDGMENT The Writ petition is filed by the plaintiff in a suit for partition against an order passed on their application to determine the availability of the properties for partition in view of the objections raised by some of the defendants that suit property is not available for partition, by appointing an advocate commission. Such an application was moved even before a preliminary decree was passed in the suit determining the rights of the parties over the suit property scheduled in the plaint. The learned Munsiff after considering the merit of the application dismissed it by Ext.P5 order. Propriety and correctness of that order is W.P.(C).No. 32118 OF 2009 impeached in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner and also the 10th respondent. Learned counsel for the petitioner submitted that, in view of the contentions raised by some of the defendants in the suit that the property sought for partition is covered by a mortgage holding the application for commission was filed to determine and exclude that mortgage holding so as to proceed with the suit in respect of the rest of the property. So much so, the application for commission for determination of the property after excluding the mortgage holding is essential for granting a preliminary decree in the suit is the submission of the counsel. I am not impressed by the submission of the counsel. Even on the submission made by the W.P.(C).No. 32118 OF 2009 counsel, it is evident, the whole suit property as scheduled may not be available for partition. It is for the plaintiff to specify the property in respect of which shares of the parties are to be determined before passing of a preliminary decree. The court is not expected to and further it should not proceed with an enquiry as to the identity of the property in the suit before adjudicating the right of the parties for partition and passing of a preliminary decree. That is a matter to be determined at a later stage. There is no impropriety or illegality in Ext.P5 order passed by the court below. Writ petition is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv