IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 RP.No. 821 of 2007(K) --------------------- AGAINST THE JUDGEMENT IN WPC.37275/2003 Dated 03/08/2007 .................... REVIEW PETITIONER/RESPONDENT --------------------------------------------- SREEDHARAN, S/O.MARASARI NANU, VELLITHIRUTHI DESOM, CHOWANNUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT: PETITIONER IN THE WRIT PETITION -------------------------------------------- BHASKARAN, S/O.MARASARI NANU, VELLITHIRUTHI DESOM, CHOWANNUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.B.KRISHNAN THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- RP. No. 821 of 2007 in W.P.(C)No. 37275 of 2003 --------------------------------------------------------- Dated this the day of September, 2008 O R D E R Respondent in the writ petition is the petitioner in this review petition and the respondent herein is the petitioner in the writ petition. The parties are direct brothers. The writ petition was filed by the respondent under Article 227 of the Constitution challenging the order of the Execution Court in E.A. No. 435/03 declining the writ petitioner's prayer for re-delivery of the decree schedule property which was the residential house of the parties. I allowed the writ petition by judgment dated 3-8-2007 holding that the learned Munsiff was not justified in insisting that the prayer for re-delivery made in the execution petition can be considered only after the other prayers in the execution petition are enquired into. I relied on the delivery receipt and the finding of the learned Munsiff himself to hold that the entire decree schedule building had been delivered over to the respondent in the writ petition (the review petitioner herein) and that being an Execution Court it was the obligation of that court to ensure that the order of the Supreme Court undoing the delivery be implemented at the earliest. Accordingly I directed the learned Munsiff to order re- delivery within 30 days of receiving copy of the judgment. I also RP. No. 821/07 -2- observed that all claims legally available to the respondent will be considered by the learned Munsiff while enquiring into the other payers in the execution petition. Review of my judgment is sought in this petition on various grounds and some of the submissions which was addressed by Mr. Sethumadhavan, learned counsel for the petitioner before me were attractive. Mr.P.B.Krishnan, leanrned counsel for the respondent would resist the submissions with equal tenacity. I however, felt that being a long pending dispute between the direct brothers the issue should be sorted out amicably between them especially since the co-ownership of the parties over the property was yet to be terminated by effecting a partition. As requested by Mr.Sethumadhavan I permitted the petitioner to conduct a survey of the properties in anticipation of a prospective partition and also directed the respondent to assist the petitioner as well as the surveyor in the matter of survey. It was reported to me on 5-11-2007 that survey and measurement was conducted and that a plan has been prepared and according to Mr.Sethumadhavan as per the plan the property has been divided into two portions and that if the division as per the plan is accepted the same will work out a reasonable compromise between the parties. Mr.Krishnan however, would report RP. No. 821/07 -3- that the division proposed as per the plan is not acceptable to the respondent. He would again harp on his contention that there is absolutely no warrant for reviewing my judgment. He however had been agreed that in view of the obvious position that the co-ownership of the parties over the property is yet to be terminated a partition of the property amongst co-owners will become ultimately necessary. Hearing on the basis of the submissions addressed before me on 19- 11-2007 I referred the case to the Lok Adalath conducted in this court under the aegis of the High Court Legal Service Committee. The proceedings of the Lok Adalath is extracted below: “Parties present. We had a talk with them. Both parties are very much interested in taking the building. It appears that there is chance of settlement. Post on 10-12-2007. 28-11-07 Sd/- KJ(J) Sd/-KJTS(Rtd. ADJ) Two or three suggestions for settlement were placed before the parties. Parties want some more time to consider these options. Post on 7-1-2008. 10-12-2007 Sd/- KJM(Rtd. J) Sd/-KJTS (Rtd. ADJ) Parties and counsel are present. Three proposals were considered. First was that in lieu of half rights over the 12.5 cents involved in the case, the respondent will give 12 cents situated behind of the said property to the petitioner. The 2nd proposal was that the respondent will give Rs.50,000/- (Rs.fifty thousand only) to the petitioner towards his half right. 3rd proposal suggested was that the property will be divided into two halves with the northern half having extent of six cents and the southern half having slightly bigger extent. The respondent wants further time to consult his son in the matter. Accordingly RP. No. 821/07 -4- we adjourn the case to 25-1-2008. 7-1-2008 Sd/-MRHN (Rtd. J.) Sd/- KJTS (Rtd. ADJ) Review petitioner and counsel are present. Respondent is also present. There is no possibility of settlement . Post before regular court. 25-1-08 Sd/-MMPP(Rtd. CJ) Sd/- MRHN(Rtd. J)” Though the Lok Adalath had referred the case back to the regular court stating that an amicable settlement between the parties is not workable there is no denial of the fact that the entire decree schedule property including the building ordered to be re-delivered and was actually re-delivered in implementation of my judgment remains in the co-ownership of the parties and that an amicable solution of the entirety of the issues between the parties is a partition. Under the above circumstances even as I decline to review my judgment I make it clear that the position now obtained by the respondent on the strength of that judgment will be subject to the final orders which will be passed by the learned Munsiff in the execution petition. I also direct the learned Munsiff to keep the execution petition pending and appoint an advocate commissioner, a senior member of the Bar of known ability and integrity to effect a partition of the properties with the assistance of a surveyor. The expenses for the commissioner and the surveyor should be ordered to be borne by both sides equally and RP. No. 821/07 -5- if it is seen that either of the parties is not co-operating it can be ordered that the non-co-operating party's share of the expenses will be charged to his share in the property. Considering the stand taken by the parties before the Lok Adalath and in this Court that a partition will be the proper and effective solution for all the disputes between them there will be a direction to both parties to strictly abide by all the directions to be issued by the learned Munsiff in the matter of the partition ordered as above. RP is disposed of as above. (PIUS C.KURIAKOSE, JUDGE) ksv/-