IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 OP(C).No. 738 of 2010() ---------------------------------- AGAINST THE ORDER DATED 06/10/2010 IN IA 1149/2010 IN AS.NO. 47/2007 of SUB COURT, CHERTHALA .................... REVN.PETITIONER/5TH CR.PETITIONER/5TH RESPONDENT ------------------------------------------------------------------------------- GEORGEKUTTY @ APPACHANKUNJU, S/O. JOB, THEKKEVALYAR PUTHEN VEEDU, THYKKATTUSSERI VILLAGE, -DO- MURI, CHERTHALA. BY ADV. SRI.ROY CHACKO RESPONDENT(S): PETITIONERS/APPELLANTS & RESPONDENTS 1 TO 4 -------------------------------------------------------------------------------------------------------- 1. PHILOMINA @ SALOMI AND SALOMA JOB, W/O. JOY JOSEPH, THULUSSERI, ERAVIMANGALAM, MANJOOR, MUTTUCHIRA P.O., KOTTAYAM DISTRICT. 2. JOY JOSEPH, S/O. JOSEPH, THULUSSERI, ERAVIMANGALAM, MANJOOR, MUTTUCHIRA P.O., KOTTAYAM DISTRICT. 3. MARY JOB, W/O. JOB, THEKKEVALYARA PUTHENVEEDU, THYKKATTUSSERY VILLAGE, -DO- MURI. * 4. ANNIAMMA JOB, SANJEEVINI, THODIYOOR, KARUNAGAPPALLY, KOLLAM.(DELETED) 5. SISAMMA JOB, VARIKKASSERIL HOUSE, PIRAVAM P.O., ERNAKULAM DISTRICT. * 6. ELSAMMA JOB, DALIYA GARDEN, KACHAPPALLY ROAD, VYTTILA, KOCHI.(DELETED) * RESPONDENTS 4 AND 6 ARE DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF THE PETITIONER AS PER ORDER DATED 19/7/11 IN I.A.NO.10107/11 IN OP(C)NO.738/2010. R1 & R2 BY ADV. SRI.B.RAMACHANDRAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.738/2010 APPENDIX PETITIONER'S ANNEXURES: ANNEX -A1 COPY OF THE APPLICATION FILED BY THE RESPONDENTS SEEKING THE INTERIM RELIEF BYWAY OF DIRECTION TO CONDUCT SALE OF THE TRUNKS OF THE FOUR TEAK TREES. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE ORDER DATED 27/4/2007 IN WP(C)NO.13797/2007 R1(B) COPY OF THE JUDGMENT DATED 29/5/2007 IN WP(C)NO.13797/2007 R1(C) COPY OF THE I.A.NO.952/2007 IN A.S.NO.47/2007 DATED 18/8/2007. R1(D) COPY OF THE JUDGMENT DATED 3/7/2007 IN WP(C)NO.20108/2007 R1(E) COPY OF THE JUDGMENT DATED 21/8/2007 IN WP(C)NO.25212/2007. R1(F) COPY OF THE JUDGMENT DATED 27/3/2008 IN WP(C)NO.10302/2008. R1(G) COPY OF THE I.A.NO.1149/2010 DATED 1/10/2010. R1(H) COPY OF THE COUNTER AFFIDAVIT DATED 1/14/2008 IN A.S.NO.47/2007 FILED BY 3RD RESPONDENT DENT. /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.738 of 2010 -------------------------------------- Dated this the 22nd day of July, 2011. JUDGMENT This Original Petition is at the instance of the additional sixth defendant in O.S.No.236 of 1999 of the court of learned Munsiff, Cherthala. The suit concerns certain documents executed by the deceased original defendant. Initially he executed a gift deed in favour of the first respondent and later, thought of revoking it and executed a document accordingly. Respondents 1 and 2, husband and wife filed the suit for a declaration that the revocation deed executed by the deceased original defendant is void in view of the gift deed the deceased original defendant had already executed in favour of first respondent. Pending suit, the sole defendant expired. That was followed by other legal representatives of the deceased original defendant being impleaded as additional defendants. One among whom is the petitioner. Contesting defendants made a counter claim for a declaration that the revocation deed is valid. Learned Munsiff dismissed the suit and allowed the counter claim against which respondents 1 and 2 filed A.S.No.47 of 2007 in the court of learned Sub Judge, Cherthala. In the appeal, respondents 1 and 2 obtained an order of interim injunction preventing the contesting defendants alienating the property, vide order on I.A.No.817 of 2007. Respondents 1 and 2 filed I.A.No.952 of 2007 to appoint an Advocate Commissioner to ascertain details of the four teak timber lying in the property, fix its value and to sell it in auction. That application was OP(C) No.738/2010 2 allowed in part to the extent that prayer for sale of timber was disallowed while the other requests were allowed. Accordingly the Advocate Commissioner inspected the property and submitted a report. Later respondents 1 and 2 filed I.A.No.1149 of 2010 for appointment of an Advocate Commissioner to sell the timber in question. That application was filed on 05.10.2010 and allowed on the next day itself. The said order is under challenge. Learned counsel for petitioner/additional sixth defendant has contended that on 06.10.2010 when I.A.No.1149 of 2010 came up for hearing counsel for petitioner requested time to file objection but the request was refused and order was passed on the same day. It is contended by learned counsel that dismissal of I.A.No.952 of 2007 to the extent it concerned the prayer for sale of timber would operate as res judicata on I.A.No.1149 of 2010. A further contention is that learned Sub Judge had no authority to appoint an Advocate Commissioner since the timber was not in the custody of court and hence Advocate Commissioner could not be appointed for its sale under Section 75(f) of the Code of Civil Procedure (for short, “the Code”). 2. Learned counsel for respondents 1 and 2 contended that petitioner was exparte in the appeal and hence could not challenge the order on I.A.No.1149 of 2010. It is pointed out, referring to Ext.R1(g) that the counsel for all other contesting parties have agreed to the timber being sold through an Advocate Commissioner since otherwise it would get perished and nobody will OP(C) No.738/2010 3 be benefited by that. Learned counsel contended that the timber could be sold and sale proceeds could be deposited in the trial court so that the amount could go to the ultimate winner. 3. Having heard learned counsel for petitioner I am not impressed by the argument regarding res judicata and lack of power for the court to appoint an Advocate Commissioner to sell the timber. I have no doubt that principles of res judicata would apply to the different stages of the same proceeding but that would depend on the facts and circumstances of the case. I.A.No.952 of 2007 was filed to appoint an Advocate Commissioner to ascertain details of the teak timber lying in the property in question, fix its value and to sell it in auction. Request for sale was not then allowed. But if on account of subsequent rain and sun rays falling on it, the timber has got decayed, I am unable to think that the court should stick to the rule of res judicata and say that even in the charge of circumstances it has no power to order sale. I must bear in mind that the present application came three years after learned Sub Judge dismissed I.A.No.952 of 2007 to the extent it concerned the prayer for sale. Therefore the argument based on res judicata cannot be accepted. 4. Next argument is based on Section 75(f) of the Code. That provision states that to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the court pending the determination of the case the court can appoint a commission. It is contended by learned counsel that the timber in question is not in the custody of court. I am afraid, OP(C) No.738/2010 4 that claim of petitioner is equally unsustainable. The timber indisputably was collected from the disputed property and is lying in the property. The disputed property which is the subject matter of the gift deed and revocation deed is custodia legis. In that view of the matter the timber collected from the said property is also in the custody of the court. 5. It is contended that petitioner was set exparte in the appeal. I leave that matter to be decided by the appellate court. 6. Learned counsel on both sides submit that the appeal itself is ripe for hearing being of the year 2007. In that view of the matter, it appears to me that the appropriate course is to dispose of the appeal itself and I.A.No.1149 of 2010 could be decided along with the appeal. If petitioner is recorded as absent in the appeal I make it clear that it is open to the petitioner to take appropriate steps in the matter and if so advised, file counter on I.A.No.1149 of 2010 before the appeal is heard. Resultantly this Original Petition is disposed of in the following lines: i. Ext.P1, order on I.A.No.1149 of 2010 is set aside and that application is remitted to the court of learned Sub Judge, Cherthala for disposal along with the appeal. OP(C) No.738/2010 5 ii. Learned Sub Judge is directed to dispose of A.S.No.47 of 2007 as early as possible and at any rate within two months from the date of receipt of a copy of this judgment. iii. It is made clear that if the petitioner was absent in the appeal it is open to him to take appropriate steps in the matter as provided under law and if so advised file counter on I.A.No.1149 of 2010 before that application is heard. iv. Learned Sub Judge shall consider whether the result of appeal may have a bearing on the disposal of I.A.No.1149 of 2010. THOMAS P.JOSEPH, Judge. cks