IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WP(C).No. 17436 of 2008(A) -------------------------- AGAINST THE ORDER DATED 14/12/2007 IN IA 91/07 IN OS.402/1979 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER(S): ------------------------- SETHUNATHAN, S/O. NARAYANAN, PANCHANAKOLAMBU, PALATHULLY AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. MR.MAHESH V. RAMAKRISHNAN, MR.S.SUJIN. RESPONDENT(S): ----------------------------- 1. THILLA, W/O LATE KUNJU 2. PANKAJAKSHAN, S/O LATE KUNJU. 3. RAMAKRISHNAN, S/O LATE KUNJU 4. SANTHA,D/O LATE KUNJU. 5. SURESH BABU,S/O LATE KUNJU 6. VASU, S/O LATE KUNJU 7. VESA,W/O.KOMBI. 8. BALAKRISHNAN,S/O. KOMBI 9. RAMACHANDRAN, S/O KOMBI. 10. CHANDRIKA, D/O KOMBI. Kss ..2/- ...2... WPC.NO.17436/2008 A 11. RADHAMANI, D/O KOMBI. 12. PREMAKUMARAN, S/O KOMBI. 13. PARAMESWARAN, S/O KOMBI, 14. BABY, S/O KOMBI. 15. UNNIKRISHNAN, S/O KOMBI. 16. KALU, S/O MATHU. 17. VINOY, S/O SANTHAKUMARI. 18. P.V. RASEEDA, D/O. SANTHAKUMARI. 19. VENUGOPALAN, H/O. SANTHAKUMARI. (ALL ARE RESIDING AT CHATHAMANGALAM, NENMARA VILLAGE, CHITTUR TALUK) R1 TO R6 BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, MR.T.C.SURESH MENON, MR.JIBU P. THOMAS, MR.P.S.APPU. R7 TO R10 & R13 TO R15 BY ADV. MR.V.JOHN MANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009 ALONG WITH WPC NO. 21097 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.17436/2008 A APPENDIX PETITIONER'S EXHIBITS: P1: COYP OF THE FINAL DECREE DTD. 5/03/1999 IN I.A.NO.2659 OF 1992 ON THE FILE OF THE ADDITIONAL SUB COURT, PALAKKAD. P2: COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN SUPPORT OF I.A.NO.91 OF 2007 IN O.S.NO.402 OF 1979 ON TH FILE OF THE ADDITIONAL SUB COURT, PALAKKAD. P3: COPY OF THE COUNTER FILED BY THE RESPONDENTS IN I.A.NO. 91 OF 2007. P4: COPY OF THE ORDER DTD. 14/12/2007 IN I.A.NO.91 OF 2007 IN O.S.NO.402 OF 1979 ON THE FILE OF THE ADDITIONAL SUB COURT, PALAKKAD. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).Nos.17436 AND 21097 OF 2008 -------------------------- Dated this the 19th day of August 2009 ------------------------------------- JUDGMENT These two writ petitions emerge from the orders passed in the execution proceedings from the decree passed in O.S No.402 of 1979 on the file of the Additional Sub Court, Palakkad. Petitioner is the 15th defendant in that suit, which was one for partition. In the final decree proceedings a plan was prepared by a commissioner with the assistance of a surveyor showing the property allotted to every sharer in accordance with the allotment under the preliminary decree. When execution proceedings were taken in respect of the final decree passed in the suit the present petitioner / 15th defendant raised objections contending that there is no schedule showing the properties W.P.(C).Nos.17436 Page numbers AND 21097 OF 2008 attached to the final decree as envisaged under Rule 235(2) of Civil Rules of Practice. To rectify that mistake, petitioner moved an application as I.A No.91/2007 praying for incorporation the schedules in the final decree. After hearing both sides, the learned Sub Judge dismissed that application finding that incorporating of the schedules with the final decree though desirable as contemplated by the aforementioned Rule was not possible in the present case. Propriety and correctness of that order, a copy of which is produced as Ext.P4, is challenged in the writ petition No. 17436/2008. After passing Ext.P4 order when the execution proceedings continued the court below ordered for delivery of the properties of the plaintiffs in the suit as per the allotment in their favour and as shown under the plan attached to the final decree passed. The petitioners have filed the other petition, writ W.P.(C).Nos.17436 Page numbers AND 21097 OF 2008 No.21097/2008, challenging the order of delivery, a copy of which is produced as Ext.P5. Since the questions arising for consideration in both these petitions pertained to the noninclusion of the schedules in the final decree and how far it will affect the execution of the final decree, and that alone, both writ petitions were heard together and disposed by this common judgment. 2. I heard the learned counsel on both sides. Schedule of properties showing the separate allotment to the sharers in the plaint property as shown under the plan attached to final decree is mandated by sub rule (2) of Rule 235 of Civil Rules of Practice and so much so, the steps taken by the court for executing the final decree without having any such schedule of the properties is not valid, correct and legal is the submission of the learned counsel for the petitioner. On the other hand, the W.P.(C).Nos.17436 Page numbers AND 21097 OF 2008 learned counsel for the respondents / plaintiffs, who alone have appeared and contested these petitions, submitted that, valid and convincing reasons have been stated by the court below why the schedules could not be incorporated in the final decree and also that the noninclusion of such schedules would not in any way affect the executability of the decree in making allotments of the specific shares of the sharers in tune with the final decree passed by the court. The application moved by the petitioner for incorporating the schedules in the final decree was filed eight years after passing of the final decree and it is intended solely to delay the execution of the decree, as petitioner is presently in enjoyment of the property is the submission of the learned counsel. Whatever that be, the question to be considered is whether the noninclusion of the schedule in the final decree would any way affect W.P.(C).Nos.17436 Page numbers AND 21097 OF 2008 the executability of the decree passed in the final court. A plan prepared by the commissioner showing the side measurements and specific identity of the property allotted to the sharers, it is admitted, form part of the final decree. The court below has found, though the schedules are not incorporated, the plan showing such specification is sufficient to give effect to the decree. No circumstance was brought to my notice to show that plan prepared by the commissioner in the final decree proceedings is inadequate and insufficient for making the allotments to the sharers as provided in the final decree. When that be so, the noncompliance of the sub rule (2) of Rule 235 in the Civil Rules of Practice when final decree has been passed without a schedule of the property is attached thereto cannot be given much significance. However, to safeguard the interest of all the parties in the proceedings, it is better that if commissioner be W.P.(C).Nos.17436 Page numbers AND 21097 OF 2008 also deputed when delivery of the property is effected to supervise such delivery by the Ameen. The commissioner who prepared the plan which form part of the final decree, if available, can be deputed for such purpose. When delivery report is prepared, the description of the properties delivered over can also be stated by the Ameen to avoid further controversy between the parties at a later stage. Subject to the above observations / directions, the writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv