IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 OP(C).No. 1896 of 2011(O) ------------------------- OS.34/2008 of ADDL.MUNSIFF COURT,KOCHI .................... PETITIONER : ------------------- SHAJI THOMAS,AGED 38 YEARS, S/O.THOMAS,THEKINADATH, PALLURUTHY. BY ADV. SRI.JEEMON P.ABRAHAM SRI.N.C.SAJITH SRI.DILISH JOHN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY.GOVT.PLEADER, HIGH COURT OF KERALA. 2. P.T.VALSAN,AGED ABOUT 44 YEARS, PUTHANANGADI HOUSE, PERUMPADAPPU PAI ROAD, PALLURUTHY,COCHIN 682 006. 3. THRESIA THOMMI, AGED 83 YEARS, NADUVILA VEETTIL HOUSE, MARADU (VIA),EAST OF KALLATH TEMPLE,NETTOOR PO, ERNAKULAM DISTRICT, PIN 682 304. 4. BABY RAPHAEL,AGED 52 YEARS, KALLUVEETTIL HOUSE, THALASSERY ROAD, CHETTIPADI PO, PARAPPANAGADI VIA, MALAPPURAM DISTRICT,PIN 676 319. 5. ROSY XAVIER,AGED 49 YEARS, NADUVILA VEETTIL HOUSE,MARADU (VIA), EAST OF KALLATH TEMPLE, NETTOOR PO, ERNAKULAM DISTRICT, PIN 682 304. 6. P.T.ANTONY,AGED 54 YEARS, PUTHANANGADI HOUSE, MUNDAMVELI PO, NEAR ST.LOPUIZ CHAPPAL,PIN 682 507. OPC 1896/2011 7. MINI, AGED 45 YEARS, NADUVILA VEETTIL HOUSE, MARADU(VIA), EAST OF KALLATH TEMPLE, NETTOOR PO, ERNAKULAM DISTRICT. 8. THANKAMMA, THEKKANEDATH HOUSE, AGED 55 YEARS,ERUMATHALA PO, KIZHUMADU,PIN 683 112. 9. T.T.VARGHESE,THEKKANEDATH HOUSE, AGED 35 YEARS, ERUMATHALA PO, KIZHUMADU, PIN 683 112. . 10. SALI JOHNY,VADASSERY HOUSE, AGED 38 YEARS, PALLURUTHY PO, PIN 682 006. GOVERNMENT PLEADER SRI.T.K.SAJEEV THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1896/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THESALE DEED NO.6265/95 DATED 25.10.1996 EXT.P2: COPY OF THE JUDGMENT IN O.S.NO.34/2008. EXT.P3: COPY OF THE AUCTION NOTICE. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------- O.P.(C).No.1896 of 2011 ----------------------------------- Dated this the 16th day of June, 2011 JUDGMENT The petitioner states that he is the son of Thankamma, the seventh defendant in O.S.No.34 of 2008 on the file of the court of the Munsiff of Kochi. It is also stated that defendants 8 and 9 in the suit, namely, T.T.Varghese and Sali Johny are the children of Thankamma. O.S.No.34 of 2008 was filed by P.T.Joy, son of Thommi for partition claiming 1/8th share in the plaint schedule property in that suit. P.T.Joy is not made a respondent in the Original Petition. In O.S.No.34 of 2008, a preliminary decree was passed on 25th October, 2008. The operative portion of the judgment reads as follows : “In the result, the suit decreed as follows:- (1) The plaintiff is entitled to 1/8th share in the plaint schedule property. O.P.(C) No.1896/2011 2 (2) The defendants 1 to 6 are entitled to 1/8th share each in the plaint schedule property. (3) The defendants 8 and 9 are entitled to 1/16th share each in the plaint schedule property. (4) The costs of litigation is to be borne from the estate. (5) The plaintiff or defendants may move application for passing final judgment. The suit is adjourned sine die.” 2. The trial court also noticed that the extent of the plaint schedule property is only 3.06 cents of land. It was held under issue No.2 that the question whether the property can be partitioned by metes and bounds or whether it should be sold in public auction, would be decided in the final decree proceedings. 3. According to the petitioner, Thankamma is alive. The judgment in O.S.No.34 of 2008 proceeds on the basis that whereabouts of Thankamma is not known for the last 21 years. It was also noticed that, had Thankamma been O.P.(C) No.1896/2011 3 available, defendants 8 and 9, her children, would not have joined in Exhibit A2, an assignment deed executed by some of the co-sharers. The court also held that defendants 8 and 9 are entitled 1/16 share each. 4. According to the petitioner, Thankamma is alive. If so, defendants 8 and 9 would not be sharers. It is also submitted that if defendants 8 and 9 are entitled to sharers, the petitioner is also entitled to a share. It is submitted that in the final decree proceedings, the court directed sale of the decree schedule property in public auction. The auction is scheduled to be held on 16.6.2011 at 1.45 P.M. Therefore, the petitioner rushed to this Court by filing this Original Petition. The main relief sought for in the Original Petition is to issue an order or direction to the first respondent (State of Kerala represented by Government Pleader, High Court of Kerala) to stay the auction scheduled to be held on 16.6.2011. O.P.(C) No.1896/2011 4 5. The direction as sought for in the Original Petition cannot be granted. The plaintiff in O.S.No.34 of 2008 is not made a party to the Original Petition. The State of Kerala is not a party in the Original Suit. The Original Petition is misconceived. If the petitioner is aggrieved by the direction for sale of the property in public auction, he has to approach the court which passed that order or he should resort to other appropriate legal remedies. For the aforesaid reasons, the Original Petition is dismissed. K.T.SANKARAN JUDGE csl