IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WP(C).No. 5477 of 2008(B) ------------------------- AGAINST THE ORDER DATED / / IN IA 1736/07,IN IA 1105/04 IN OS.150/1997 OF MUNSIFF COURT, MANJERI .................... PETITIONER: ----------- GOPINATHAN, S/O.LATE KOLOTHODIKA THAMI, VELLAYOOR AMSOM, POOMGODU P.O. PULIYAMKALLU, MALAPPURAM DISTRICT. BY ADV. SRI.SAJU.S.A RESPONDENTS: ----------- 1. VALAKKODAN VELAYUDHAN, S/O.KELU AMARAMBALAM AMSOM DESOM, AMARAMBALAM PO NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 2. NARAYANAN, S/O.KELU AMARAMBALAM AMSOM DESOM, AMARAMBALAM PO NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 3. DAVAKI, D/O.KELU AMARAMBALAM AMSOM DESOM, AMARAMBALAM PO NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 4. ARUMUGHAN, S/O.KELU AMARAMBALAM AMSOM DESOM, AMARAMBALAM PO NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 5. POOVANCHERI UNNIPENNU, D/O.ARUMUGHAN AMARAMBALAM AMSOM DESOM, AMARAMBALAM PO NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 6. DEVAKI, D/O.ARUMUGHAN AMARAMBALAM AMSOM DESOM, AMARAMBALAM PO NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 7. KARTHIYANI, D/O.ARUMUGHAN AMARAMBALAM AMSOM DESOM, AMARABALAM PO NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 8. POOVANCHERI ARUMUGHAN, S/O.ARUMUGHAN AMARAMBALAM AMSOM DESOM, AMARABALAM PO NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 9. KAIPPALLI DEVAKI, W/O. UNNIYAMU AMARAMBALAM AMSOM, THOTTAKKARA NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 10. CHAKKUNNI, AMARAMBALAM AMSOM POTTIKKALLU, KAVLAMUKKATTA, NILAMBUR TALUK MALAPPURAM DISTRICT. 679 332. 11. PUTHUPARAMBIL KARAPPAN, S/O.CHAKKUNNI AMARAMBALAM AMSOM, POTTIKKALLU, KAVLAMUKKATTA NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 12. PUTHUPARAMBIL MANI @ AMMUNNI D/O.CHAKKUNNI, AMARAMBALAM AMSOM, POTTIKKALLU KAVLAMUKKATTA, NILAMBUR TALUK MALAPPURAM DISTRICT. 679 332. 13. PUTHUPARAMBIL CHANDRASEKHARAN S/O.CHAKKUNNI, AMARAMBALAM AMSOM, POTTIKKALLU KAVLAMUKKATTA, NILAMBUR TALUK MALAPPURAM DISTRICT. 679 332. 14. THATTAMTHODIYIL NARAYANI W/O.VELAYUDHAN, ULLADU, AMARAMBALAM AMSOM NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 15. POOVANCHERI SUBRAMANIYAN, S/O.AYYAPPAN VANDOOR AMSOM, PAZHEDAM DESOM, KOORADU NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 16. POOVANCHERI SARADA, D/O.VELAYUDHAN WANDOOR AMSOM, PAZHEDAM DESOM, KOORADU NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 17. NARAYANI, ULLADU AMARAMBALAM AMSOM, NILAMBUR TALUK MALAPPURAM DISTRICT. 679 332. 18. RATHEESH, S/O.SAROJINI AMARAMBALAM AMSOM, THOTTAKKATTUKARA NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 19. POOVANCHERI KARTHIAYANI, D/O.AYYAPPAN WANDOOR AMSOM, PAZHEDAM DESOM, KOORADU NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 20. POOVANCHERI KELU, S/O.AYYAPPAN WANDOOR AMSOM, PAZHEDAM DESOM, KOORADU NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 21. POOVANCHERI DEVAYANI, D/O.AYYAPPAN WANDOOR AMSOM, PAZHEDAM DESOM, KOORADU NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 22. POOVANCHERI KUNDU, S/O.AYYAPPAN WANDOOR AMSOM, PAZHEDAM DESOM, KOORADU NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 23. POOVANCHERI SUBRAMANIYAN, S/O.AYYAPPAN WANDOOR AMSOM, PAZHEDAM DESOM, KOORADU NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 24. POOVANCHERI JANAKI, D/O.AYYAPPAN WANDOOR AMSOM, PAZHEDAM DESOM, KOORADU NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 25. POOVANCHERI SREEDEVI, D/O.AYYAPPAN WANDOOR AMSOM, PAZHEDAM DESOM, KOORADU NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. 26. POOVANCHERI SASIDHARAN, S/O.AYYAPPAN WANDOOR AMSOM, PAZHEDAM DESOM, KOORADU NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 332. BY ADV. SRI.R.RAJESH KORMATH - R18-R25 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5477 of 2008 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF THE I.A.NO.1736/2007 IN IA.1105/2004 IN O.S.150/97 DATED 02.11.2007 EXT.P2:- TRUE COPY OF THE COUNTER DATED 20.11.2007 FILED IN EXT.P1 IA EXT.P3:- TRUE COPY OF THE ORDER DATED 22.01.2008 IN I.A.NO.1736/2007 IN I.A.1105/2004 IN O.S.150/97 OF MUNSIFF COURT, MANJERI -TRUE COPY- P.A. TO JUDGE pac M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 5477 OF 2008 ............................................ DATED THIS THE 13th DAY OF JUNE, 2008 JUDGMENT Petitioner is the 14th respondent in I.A.1105 of 2004 in O.S. 150 of 1997 on the file of Munsiff Court, Manjeri. I.A.1105 of 2004 is an application for passing of the final decree. As against the preliminary decree, an appeal is pending before District Judge, Manjeri as A.S.40 of 2003. In that first appeal, an order of stay of passing of the final decree was passed and that order is subsisting. The appeal is yet to be disposed. In the final decree application, plaintiffs filed I.A.1736 of 2007 to conduct auction for taking profits from the decree schedule property and to deposit the bid amount in court so that it could be divided in accordance with the preliminary decree. Under Ext.P3 order, the petition was allowed and trial court directed to sell the property in auction between the parties, fixing the lowest bid amount at Rs.50,000/-. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner and contesting respondents in the suit were heard. 3. Though a preliminary decree was passed, it is now being WP(C) 5477/2008 2 challenged in A.S.40 of 2003. Passing of the final decree is also stayed in the appeal. As per the preliminary decree, defendants 16 to 20 are liable to pay the share of profits due to the other sharers. Under Ext.P3 order, learned Munsiff found that the income from the property would be around Rs.44,655/- and as per the share under the preliminary decree, petitioner and others(defendants 16 to 20) will be entitled to only Rs.8931/- and are liable to pay share of profits of Rs.35,724/- to the others, it is better to auction the income in between the sharers. As rightly pointed out by the learned counsel appearing for petitioner, no Receiver was appointed, either when the suit was pending before the trial court or in the first appeal. Even as per the preliminary decree, defendants 16 to 20 are liable to pay share of profits of other defendants. In such circumstances, learned Munsiff should not have disturbed possession of petitioners, so long as there is no allegation that the property which would be available to the share of defendants 16 to 20, will not be sufficient enough to pay the share of profits, if they are allowed to continue to take income from the whole property. In such circumstances, Ext.P3 order is quashed. Plaintiffs are entitled to move an application for appointment of Receiver or WP(C) 5477/2008 3 any other appropriate petition, if they have a case that there is mismanagement or that damages have been caused to the plaint schedule property, which is available for partition. Petition disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE lgk/-