IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 13423 of 2008(W) -------------------------- OS.2/2007 of SUB COURT, PERUMBAVOOR .................... PETITIONER: ---------------------- M.P.JACOB, MANGALAM HOUSE, CHITTOOR ROAD, ERNAKULAM. BY ADV. SRI.FEBIN J.VELUKARAN RESPONDENTS: ------------------------ 1. M.P.PRASAD, MANGALAM HOUSE, KALADY VILLAGE, ERNAKULAM DISTRICT. 2. M.P.CHERIAN, MANGALAM HOUSE, ALATTUCHIRA, KODANAD, ERNAKULAM DISTRICT. 3. THE OFFICIAL RECEIVER, SUB COURT, PARAVUR. ADV.SRI.KURIAN ANTONY EDASSERY FOR R1 SRI.MICHAEL POOVATHANY FOR R1 SRI.V.J.JOSEPH FOR R2 SRI.P.K.ABDUL RAHIMAN (CHELAKULAM) FOR R2 SMT.M.V.LIGI FOR R2 SRIC.C.SALAS FOR R2 SRI.PAUL MATHEW (PERUMPILLIL) FOR R3 SRI.P.V.SREENIJIN FOR R3 SMT.K.B.SONY FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13423/2008 N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN CMC NO.129/05 DTD. 22ND MARCH 1996. EXT.P2: COPY OF THE ORDER OF THIS HON'BLE COURT IN C.R.P.NO.1312/96 AND C.M.A.NO.196/96. EXT.P3: COPY OF THE RULES AND REGULATION FRAMED BY THE 3RD RESPONDENT RECEIVER WITH REGARD TO CONDUCTING OF AUCTION. EXT.P4: COPY OF THE I.A.NO.4743/05 AND THE ORDER OF THE COURT BELOW DIRECTING THE 3RD RESPONDENT RECEIVER TO TAKE INCOME DIRECTLY FROM THE PROPERTY. EXT.P5: COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN S.L.P.NOS.12355-12356. EXT.P6: COPY OF THE FINAL ORDER OF THE HON'BLE SUPREME COURT DTD. 10/08/07 IN S.L.P.NO.12355-12356/05. EXT.P7: COPY OF THE ORDER PASSED BY THE COURT BELOW IN I.A.987/07. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.13423 of 2008 ------------------------------- Dated this the 4th July, 2008. J U D G M E N T Petitioner is the first defendant, first respondent the plaintiff and second respondent the second defendant in O.S.No.2 of 2007, on the file of the Sub Court, Perumbavoor. The suit was originally filed before Sub Court, North Paravur, and was transferred subsequently to Sub Court, Perumbavoor, on establishment of that court. The suit is for partition and separate possession of plaint schedule property. Plaint schedule property is having an extent of 101 acres and 21 cents in Kodanad village. When the suit was pending before Sub Court, North Paravur, a receiver was appointed by the learned Sub Judge. It was challenged before this Court in C.M.A.Nos. 129, 130, 186 and 198 of 1995, which was heard along with CRP.No.1425 of 1995. Under Ext.P1 order, this Court set aside the impugned order and clarified that receiver will be at liberty to seek appropriate guidance from the court for every important matter and shall get prior sanction of the court. This Court found that the entire property will nominally be put into possession of the receiver and he W.P.(C) No.13423 of 2008 2 shall divide the property into 4 or 5 plots, depending upon the convenience of the parties and shall conduct auction of the same, and parties to the suit alone be allowed to participate in such auction. It was also provided that proceeds of such auction shall be deposited in court. Third respondent who was the official receiver was thus appointed receiver, who has to act only nominally, as under Ext.P1 order this Court directed to divide the entire property into four or five plots, and to conduct auction among only the parties. Subsequently, on 15.8.1996, auction was held and property was divided in to five plots. Third defendant being the highest bidder in respect of Item No.1 was directed to hand over one-fourth of the amount to the receiver on or before 24.8.1996, and auction of Item No.1 was confirmed in his favour. In Item No.2, plaintiff was the highest bidder. But when the counsel submitted that plaintiff is not in a position to raise the bid amount of Rs.20 lakhs, auction in favour of the plaintiff was cancelled. This Court in C.R.P.No. 1312 of 1996 and CMA.No.196/1996 directed the receiver to conduct fresh auction in respect of plots 2 to 5 making it clear that all conditions indicated earlier shall hold good, and each plot shall be auctioned separately and the successful bidder on the fall of hammer shall pay one-fourth of the bid amount directly to the receiver. If the successful bidder is not in a position to pay one-fourth amount, there shall be an auction of that plot and there will not be any W.P.(C) No.13423 of 2008 3 further notice with regard to the auction, as all the parties are represented before this Court through their counsel. Subsequently, auction was conducted on 10.10.2005. Ext.P4 petition was then filed by third respondent to set aside the auction sale. Meanwhile, plaintiff sought amendment of the plaint, which was rejected by the trial court, confirmed by this Court, and was challenged before Supreme Court, SLP. (Civil) Nos.12355 and 12356 of 2006. In that proceedings, Ext.P5 order of stay was passed staying all further proceedings in I.A.Nos.4610/95 and 977/1997 in O.S.No.295/92. Ultimately, under Ext.P6 order, the amendment was allowed. It is admitted by the plaintiff, petitioner, and respondents that respective parties were in possession of the property, being the successful bidders in the auction conducted by the receiver. Meanwhile, by Ext.P7 order, learned Sub Judge directed the receiver to take yield from the property directly, as successful bidder did not deposit the amount, as provided under Ext.P4 order. Ext.P7 order is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for the petitioner and learned counsel appearing for respondents and the receiver were heard. W.P.(C) No.13423 of 2008 4 3. Even though this Court under Ext.P1 order upheld the order of appointment of receiver, it was clarified that he shall divide the properties into four or five plots and the plots shall be auctioned in between the parties, and appointment of the receiver was only nominal to that extent. Even under Ext.P2 order, that position was confirmed and it was specifically directed that auction has to be conducted as provided under Ext.P1. In such circumstances, learned Sub Judge was not justified in directing the receiver to take income directly, when Exts.P1 and P2 orders mandate that it is not for the receiver to collect the income personally, and plots have to be auctioned in between the parties. In such circumstances, Ext.P7 order is quashed. Learned Sub Judge is directed to proceed in accordance with the directions of the Division Bench of this Court in Exts.P1 and P2 orders. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.