IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 WP(C).No. 10834 of 2009(O) -------------------------- OS.299/2007 of PRL.S.C.,THALASSERY .................... PETITIONERS: --------------- 1. NIRMALA P.K., W/O. LATE SREENIVASAN, KODIYIL HOUSE, EDACHOVVA, KANNUR. 2. T.K. SREEKANTH, S/O. LATE SREENIVASAN , OF DO. BY ADV. MR.V.RAJAGOPAL MR.G.MOHAN RESPONDENTS: --------------- 1. T.K. SUKUMARAN, S/O. KUNHIKANNAN, AGED 73, THANDAYANKANDY HOUSE, CHOVVA , KANNUR. 2. MONOTH SHYLAJA, W/O. LATE JAYACHANDRAN, RESIDING AT SREENILAYAM, SHANTHINAGAR COLONY KANNUR-2. 3. SREENA THANDAYANKANDY, D/O. LATE JAYACHANDRAN OF DO... 4. SREEJESH THANDAYANKADY, S/O. LATE JAYACHANDRAN OF DO. 5. SREENESH THANDAYANKANDY, S/O. LATE JAYACHANDRAN OF DO. 6. SREEJAYA THANDAYANKANDY, D/O. LATE JAYACHANDRAN OF DO. ADV. MR.K.V.PAVITHRAN FOR R1 MR.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.10834 of 2009 - O --------------------------------- Dated this the 1st day of December, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To set aside the proposed auction fixed on 4.4.2009 by the Advocate Commissioner in I.A.No944 2009 in I.A.No.1130/2008 in O.S.No.299/2007 on the file of the Principal Sub Court, Tellicherry, pursuant to Ext.P3 auction of item No.2.” 2. Petitioners are the 6th and 7th defendants in O.S.No.299 of 2007 on the file of the Additional Sub Court, Thalassery. Suit is one for partition and there are two items of properties scheduled as item Nos. 1 and 2 in the plaint. These petitioners (defendants 6 & 7) have filed joint written statement. On the application moved by the plaintiff an advocate commissioner was appointed by the court to auction the right to collect usufructs from the two items of properties on melpattom for one year period. When the advocate commissioner inspected the property for conducting the auction after publication of notice one among the petitioners (6th defendant) objected to the auction W.P.(C).No.10834 of 2009 - O 2 over item No.2 property contending that she has exclusive possession over 3 acre 70 cents of land. In other words, she disputed the identity of item No.2 property which was proposed to be auctioned by the commissioner. The commissioner reported the matter before the court and pursuant to direction issued by the court for identification it was so done with the assistance of a surveyor and an interim report and plan was filed. Plaintiff thereupon moved an application for conduct of the auction over the item No.2 property as well. On that application the court below passed an order directing the commissioner to proceed with the conducting of the auction of item No.2 separately and to file a report. Proposed auction by the commissioner over item No.2 property on the basis of orders issued as aforesaid is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioners and also the learned counsel for the respondent/plaintiff. 4. At the time of hearing, learned counsel for the W.P.(C).No.10834 of 2009 - O 3 petitioners submitted that no notice of the application on I.A.No.944 of 2009 moved by the respondent/plaintiff was given, and without notice to petitioners, an order was passed by the court on 23.3.2009 ordering the commissioner to proceed with the auction over item No.2 property. Since that order happened to be passed without hearing the petitioners it is liable to be set aside and the application has to be heard again and appropriate orders passed, is the case canvassed by the learned counsel for the petitioners. Orders were passed in I.A.No.944 of 2009 by the court on 23.3.2009 only after notice was given on the application, is the submission of the learned counsel for the plaintiff. It is further submitted that none of the previous orders passed by the court for conducting auction over item Nos.1 & 2 properties by the commissioner have been challenged by the present petitioners and, further, there is no challenge in the written statement to the reliefs canvassed in the suit other than a claim for mesne profits. 4. Having regard to the submissions made and taking note of the facts and circumstances presented, I find in case the W.P.(C).No.10834 of 2009 - O 4 petitioners have a case that they have not been given notice before passing of the order dated 23.3.2009 in I.A.No.944 of 2009 by the court issuing directions to the commissioner to proceed with the auction of item No.2 property, it is open to them to file a review petition and seek appropriate directions/orders for rehearing and fresh disposal of the I.A. In exercise of the writ jurisdiction this Court will not be in a position to examine whether the order was passed with notice to the petitioners. If orders had been passed by the court on I.A.No.944 of 2009 with notice to the petitioners, needless to state, no further enquiry is contemplated even if any review petition is filed by the petitioners. With the above observations, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-