IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 RSA.No. 839 of 2008() --------------------- AS.154/2007 of ADDL.SUB COURT, IRINJALAKUDA OS.333/1999 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------------------- 1. RAJU, S/O.KANJIRATHARAVEETTIL YESODA, LOKAMALESWARAM DESOM & VILLAGE, KODUNGALLUR TALUK. 2. VENU, S/O.KANJIRATHARAVEETTIL YESODA, LOKAMALESWARAM DESOM & VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENTS/ RESPONDENTS/PLAINTIFFS: ---------------------------------- 1. YESODA, W/O.KANJIRATHARAVEETTIL GOVINDAN LOKAMALESWARAM DESOM & VILLAGE, KODUNGALLUR TALUK. 2. MANI, D/O.KANJIRATHARAVEETTIL YESODA, -DO- , -DO- , -DO- 3. SUBRAMANIAN, S/O.KANJIRATHARAVEETTIL YESODA, -DO- , -DO- , -DO- 4. GIRESSAN, S/O.KANJIRATHARAVEETTIL YESODA, -DO- , -DO- , -DO- 5. SANTHA, D/O.KANJIRATHARAVEETTIL YESODA, -DO- , -DO- , -DO- 6. SAROJINI, D/O.KANJIRATHARAVEETTIL YESODA, -DO- , -DO- BY /- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ==================== R.S.A.No.839 of 2008 =========================== Dated this the 19th day of September, 2008. J U D G M E N T The defendants in O.S.No.333/1999 on the file of the Munsiff's Court, Kodungallur, are the appellants in this second appeal. The said suit was for partition of separate possession of plaintiff's share over 6.25 cents of land with two buildings and a hut thereon. 2. Parties will be referred to according to their rank in the court below. A preliminary decree was passed holding that plaintiffs 1 to 6 are entitled to partition and separate possession of 6/8 shares in the plaint schedule property. In order to effect partition my metes and bounds in terms of the preliminary decree, the court below appointed an advocate commissioner. The commissioner filed a report stating that physical partition of the property was not possible. Thereafter, plaintiffs filed I.A.No.278/2003 for directing the advocate commissioner to sell the plaint schedule property and to deposit the sale consideration in the executing court. That petition was allowed. On 8.7.2003, the advocate commissioner appointed by the court, conducted an auction among the sharers. However, the court below set aside the sale conducted by the R.S.A.No.839 of 2008 2 advocate commissioner as per its order dated 14.3.2007 in I.A.No.1869/2006. Thereafter, a fresh sale was ordered to be conducted in open court in the light of the judgment of this Court in W.P.(C).No.19401/2007. Thereafter, the sale among the sharers was conducted in the open court on 13.8.2007. The highest bid offered was by the 4th petitioner, Gireesan and the amount offered was Rs.2,55,000/-. The said offer was accepted and the sale was confirmed in his favour for the said amount. The 4th petitioner had deposited Rs.1,01,040/- in the earlier auction proceedings. After deducting the said amount, the 4th petitioner, Gireesan deposited the balance sale price in the executing court which confirmed the sale in his favour. Subsequent to the setting aside of the 1st sale, petitioners 1 to 6 had withdrawn their share of sale proceeds amounting to Rs.75,780/-. As per the preliminary decree petitioners and respondents are entitled to 1/8 share each costing Rs.31,875/-. Since petitioners 1,2,3,5 and 6 had already withdrawn Rs.75,780/- towards their share, they were held entitled to withdraw the balance amount which works out to Rs.19,245/- each. It was on this basis that court below passed the final decree, allotting the plaint schedule property to the share of 4th petitioner, R.S.A.No.839 of 2008 3 Gireesan, he being the purchaser of the property in the sale conducted among the sharers. Petitioners 1,2,3,5 and 6 before the court below were thereupon directed to deliver the decree schedule property to the 4th petitioner. The said order has been confirmed by the Sub Court in appeal, consequent on the dismissal of the petition to condone the inordinate delay. It is the said delivery which is sought to be restrained by the defendants who were the respondents before the court below. I am not inclined to accept the appellants' contention that the second appeal raises the questions of law formulated at page four of the memorandum of second appeal. No question of law much less any substantial question of law arises for consideration in this second appeal which is accordingly dismissed in limine. V.RAMKUMAR JUDGE. bkn/-