IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 OP(C).No. 3999 of 2011(O) ------------------------------------ OS.275/2010 OF MUNSIFF COURT, CHERTHALA .................... PETITIONERS (S): ------------------------- 1. PIOUS MATHAI, KURUSUNKAL HOUSE, ARTHUNKAL.P.O., CHERTHALA, ALAPPUZHA DISTRICT. PIN-688 530. 2. JOSE PRASAD, KURUSUNKAL HOUSE, ARTHUNKAL.P.O., CHERTHALA, ALAPPUZHA DISTRICT. PIN-688 530. BY ADV. SRI.K.K.JOHN SRI.K.PAUL KURIAKOSE RESPONDENT(S): ------------------------ 1. UCO BANK, RAVIPURAM BRANCH, ERNAKULAM, PIN-682 015, REP.BY ITS BRANCH MANAGER. 2. SMT.BHARATHI N.SHAH, D/O.PADAMSEY, HIRJI, VIII/2083, ZAVERI NIVAS, GUJARATI ROAD, MATTANCHERRY, KOCHI-682 002. 3. UNION BANK OF INDIA, REPRESENTED BY ITS BRANCH MANAGER, MARINE DRIVE BRANCH, ERNAKULAM, KOCHI-682 031. 4. FRANCIS ANSLAM, KURISINKAL HOUSE, CHERTHALA SOUTH VILLAGE, ARTHUNKAL, CHERTHALA-688 530. 5. SAMUEL AGNEL, KURISINKAL HOUSE, CHERTHALA SOUTH VILLAGE, ARTHUNGAL.P.O., CHERTHALA-688 530. Contd.....2 -:2:- OPC NO. 3999/2011 6. DOMINIC SUNDARAM, KURISINKAL HOUSE, CHERTHALA SOUTH VILLAGE, ARTHUNGAL.P.O., CHERTHALA-688 530. R1 BY ADV. SRI. GEORGE K VARGHESE R3 BY ADV. SRI. A.S.P. KURUP, SC THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD OPC NO. 3999/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1- PHOTOSTAT TRUE COPY OF PLAINT IN O.S.NO.275 OF 2010, MUNSIFF'S COURT, CHERTHALLA. EXHIBIT P2- PHOTOSTAT COPY OF THE PETITION FOR TEMPORARY INJUNCTION I.A.NO.1622/2010 IN O.S.NO.275 OF 2010. EXHIBIT P3- PHOTOSTAT TRUE COPY OF COUNTER AFFIDAVIT DATED 7.7.2010 FILED BY THE IST RESPONDENT IN INTERLOCUTORY APPLICATION I.A.NO.1622 OF 2010. EXHIBIT P4- PHOTOSTAT TRUE COPY OF DEATH CERTIFICATE DATED 17.8.2010. EXHIBIT P5- PHOTOSTAT TRUE COPY OF REGISTERED WILL NO.135 OF 2004 DATED 4.12.2004. EXHIBIT P6- PHOTOSTAT TRUE COPY OF ORDER DATED 8.2.2011 OF THE 2ND RESPONDENT. EXHIBIT P7- PHOTOSTAT TRUE COPY OF NOTICE DATED 2.12.2011 ISSUED BY ADVOCATE COMMISSIONER SHRI.ANILKUMAR.S. RESPONDENTS' EXHIBITS NIL TRUE COPY P.A. TO JUDGE SD THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3999 of 2011 -------------------------------------- Dated this the 7th day of December, 2011. JUDGMENT This Original Petition is for a direction to the learned Munsiff, Cherthala to dispose of I.A.Nos.1622 of 2010 and 2580 of 2010 in O.S.No.275 of 2010 within a time frame to be fixed by this Court and to restrain respondents 1 and 2 from evicting petitioners and taking physical possession of the 72 cents in survey No.101/8 and the residential building thereon until disposal of O.S.No.275 of 2010. Certain other reliefs are also prayed for. 2. The suit for partition was filed by one Mariyamma claiming right over the suit property consequent to the death of her father to whom it is said that the property belonged. According to her, without her junction, her brother executed a settlement deed in favour of the 6th respondent who in turn mortgaged the said property and availed loan. On default by the 6th respondent, the 1st respondent approached the Debt Recovery Tribunal and obtained an order for sale of entire property. The said Mariyamma made a claim petition before the recovery officer but it ended in dismissal. Thereafter she filed the suit for partition impleading the bank, auction purchaser and all other necessary parties. She also filed I.A.No.1622 of 2010 for an order of temporary injunction. In the meantime the said Mariyamma expired. 1st petitioner, claiming right over the share of Mariyamma as per a Will executed in his favour filed I.A.No.2580 of 2010 to transpose him as additional plaintiff.. Those applications are pending. In the meantime, the Debt Recovery Tribunal passed Ext.P6, order for delivery OP(C)No.3999/2011 2 of property which petitioners have challenged in this Court in another proceeding. In the meantime, the Advocate Commissioner appointed pursuant to Ext.P6, order has issued Ext.P7, notice informing that delivery as ordered in Ext.P6, order will take effect on 07.12.2011. Hence this Original Petition. 3. So far as the relief sought against Ext.P7, notice is concerned, petitioners have to move appropriate application in the Original Petition challenging Ext.P6, order. 4. So far as I.A.Nos.1622 of 2010 and 2580 of 2010 are concerned, if those applications are not disposed of so far and all preliminary steps are over on those applications learned Munsiff shall dispose of those applications as early as possible. Resultantly this Original Petition is disposed of directing learned Munsiff, Cherthala to dispose of I.A.Nos.1622 of 2010 and 2580 of 2010 in O.S.No.275 of 2010 as early as possible having regard to the grievance of the petitioners and giving it priority, if preliminary steps are over. So far as relief against Ext.P7, notice is concerned, it is open to the petitioner to move appropriate application in the Original Petition where Ext.P6, order is under challenge. THOMAS P.JOSEPH, Judge. cks