IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 FAO.No. 116 OF 2008() AGAINST THE ORDER DATED 11/04/2008 IN IA 1351/2007 IN OS.205/2007 OF PRINCIPAL SUB COURT,KOLLAM APPELLANT/1ST RESPONDENT/1ST DEFENDANT: AZAD RAHIM, AGED 60 YEARS, S/O. LATE A.A.RAHIM, RESIDING AT MALIKA VEEDU, KOTTAKKAKOM WARD, KOLLAM-13. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.B.SREEKUMAR RESPONDENT(S): PETITIONER AND RESPONDENTS 2TO4/PLNTF.& DFNTS 2T04 1. ANZAR RAHIM, S/O. LATE A.A.RAHIM, PALM GROVE, THEKKEVILA, KOLLAM. 2. LAILA AZLAM, D/O. LATE A.A.RAHIM, RESIDING AT BLUE MOUNT, KOTTAKAKOM WARD,KOLLAM-13. 3. JAMEELA SALI, D/O.LATE A.A.RAHIM, LEPPERRI HOUSE, ALISSERY WARD, NEAR COLLECTORATE, ALAPPUZHA. 4. SHAMEELA FAZEL, D/O.LATE A.A.RAHIM, MANAPPATT HOUSE, NEAR CHRISTIAN COLLEGE, CANNANORE ROAD, CALICUT. R4 BY ADVS. M/S. BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE & SRI.P.G.PRAMOD R1 & R2 BY ADV.SRI.S.SREEKUMAR R3 BY ADVS. M/S. E.RAFEEK & SRI.GOKUL DAS V.V.H. SRI.M.SREELAL WARRIER,MEDIATOR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O. NO. 116/2008 ORDER ON I.A.. NO. 1991/2008 IN F.A.O. 116/2008 // DISMISSED // 16.10.2008. SD/-, P.R. RAMAN, JUDGE. SD/-, T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. 116 OF 2008 = = = = = = = = = = = = DATED THIS, THE 16TH DAY OF OCTOBER, 2008. J U D G M E N T Raman, J. Attempts made to bring out a settlement after appointing a mediator failed. Hence we proceeded to hear the matter on merits. 2. The suit is for partition of the plaint schedule items four in number. Three of them are immovable properties - a resort, a shopping complex and land nearby the lake which is alleged to be submerged in water generating no income. The other item is a car and a gun which are only movable properties. The appeal arises out of an order appointing a receiver. 3. As respect the shopping complex and resort is concerned, it is stated that they are outstanding in the possession of tenants. Of course, as regards the resort is concerned, the tenant is none other than the wife of the appellant. But the appellant has got a case that the entire rent from the shopping complex as well as from the resort is being collected directly by the Income Tax Department and accounts. In other words, no part of the FAO 116/2008 :2: rental income reaches directly in the hands of the appellant. More over, this is also accounted. Hence there is no necessity to appoint a receiver. The respondent, however, would contend that the very fact that the tenant of the resort is non other than the wife of the appellant would show that appellant is having defacto control over the resort and income received from the resort. 4. We find from the order that since the matter was proposed to be settled the court ordered that unless the matter is settled a receiver should be appointed. As such there was no occasion for the court to consider the rival submission and to consider the issue whether a receiver is to be appointed or not. In the circumstances, we set aside the order and remand the matter for fresh consideration on merits in accordance with law. The court below will pass appropriate orders expeditiously. The parties shall appear before the court below on 3.11.2008. The F.A.O. is disposed of as above. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-