IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 3703 of 2009(N) ------------------------- AGAINST THE ORDER DATED 17 / 07/ 08 IN IA 954/2008 IN OS.2/2007 of SUB COURT, PERUMBAVOOR .................... PETITIONER(S): 2ND RESPONDENT: ------------------------------ M.P.JACOB, MANGALAM HOUSE, CHITTOOR ROAD, ERNAKULAM. BY ADV. SRI.FEBIN J.VELUKARAN RESPONDENT(S): --------------- 1. ELDHOSE, S/O.KUNJAVARA, NADKKAL HOUSE, KODANADU KARA, KODANADU VILLAGE. 2. PRASAD PUNNOOSE, MANGALAM HOUSE, KALADY VILLAGE, ERNAKULAM DISTRICT. 3. M.P.PUNNOOSE, MANGALAM HOUSE, VANDANMEDU. 4. M.P.CHERIAN, MANGALAM HOUSE, ALATTUCHIRA, KODANAD, ERNAKULAM DISTRICT. 5. THE OFFICIAL RECEIVER, SUB COURT, PARAVUR. ADV. SRI.KURIAN ANTONY EDASSERY FOR R2 SRI.PAUL MATHEW (PERUMPILLIL) FOR R5 SRI.P.V.SREENIJIN FOR R5 SMT.K.B.SONY FOR R5 SRI.PRASUN.S FOR R5 SRI.SANU.S.PANICKER FOR R5 SRI.K.T.BOSCO FOR R5 SRI.K.V.SABU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.3703 of 2009 - N --------------------------------- Dated this the 17th day of September, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To issue a writ of mandamus or any other appropriate writ, order or direction to set aside Ext.p5 order of the court below. ii) To issue a writ of certiorari to quash Ext.P5 order of the court below. iii) To issue a writ of mandamus or any other appropriate writ, order or direction to the court below to conduct a proper enquiry with the aid and assistance of an expert so as to calculate the total yield received by the first respondent from the nutmeg trees in the plaint schedule property during January to June, 2008. iv) To issue a writ of mandamus or any other appropriate writ, order or direction to call for the records leading to Ext.P5 order.” 2. Petitioner is the first defendant in O.S.No.2 of 2007 on the file of the Sub Court, Perumbavoor. Suit is one for partition in which the official receiver has been put in possession of the property by order of the court. Property involved in the suit, it is stated, is having an extent of 100 acres. In order to collect the W.P.(C).No.3703 of 2009 - N 2 usufructs from the property, pursuant to order from the court, the official receiver conducted auction. The first defendant knocked down the right to collect such usufructs fro a period of one year for an amount of Rs.1 Lakh. That sum was deposited before court. Some of the parties to the suit challenged the order of engaging a third party to the suit for collecting usufructs from the property before this Court. Setting aside the order, the trial court was directed to conduct the auction as between the parties to the suit. The first defendant, the auction purchaser, thereupon moved for compensation stating that he is prevented from taking usufructs from the property. After collecting a report from the official receiver and hearing the parties, the court below passed Ext.P5 order directing refund of Rs.90,500/- to the auction purchaser. Propriety and correctness of that order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Learned counsel for the petitioner submitted that reduction of Rs.9,500/- was made by the court on the basis of a report filed by the official receiver that his enquiry revealed that W.P.(C).No.3703 of 2009 - N 3 during the period the auction purchaser had sold nutmeg to a merchant for a sum of Rs.9,500/-. That amount alone was reduced by the court from the bid amount deposited though the auction purchaser claimed only an amount of refund of Rs.50,000/- in his application, submits the counsel. It is further submitted by the counsel in the affidavit dated 5.1.2009 filed by the official receiver it has been specifically stated that the auction purchaser continued in enjoyment and collected usufructs from the property for a period of nearly six months. 5. Having regard to the submissions made and the facts and circumstances presented, i find the court below has not properly examined the disputed question involved in passing Ext.P5 order directing refund of Rs.90,500/- out of the bid amount deposited to the first defendant auction purchaser. Setting aside Ext.P5 order, I direct the court below to consider the matter afresh and pass appropriate orders after hearing all parties involved. Writ petition disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-