IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 WP(C).No. 3715 of 2008(P) ------------------------- AGAINST THE ORDER DATED 21/01/2008 IN IA 1418/2007 IN OS.146/1990 of SUB COURT, QUILANDY .................... PETITIONERS: ------------ 1. EDAVATHANATH AMMALU AMMA, PILLATTIL HOUSE, VANMUGHAM AMSOM, CHINGAPURAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. EDAVATHANATH KARUNAKARAN NAIR, THEKKAYIL, PURAKKAD AMSOM, KOZHIPPURAM DESOM, KOZHIKODE DISTRICT. 3. EDAVATHANATH SREEDHARAN NAIR, CHEMBRA HOUSE, CHINGAPURAM DESOM, VANMUGHAM AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 4. EDAVATHANATH ATHMARAMAN NAIR, PILLATTIL HOUSE, VANMUGHAM AMSOM, CHINGAPURAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 5. EDAVATHANATH BHARGAVY AMMA, POOMUKHATHIL, VANMUGHAM AMSOM CHINGAPURAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 6. EDAVATHANATH KUMARI AMMA, MATHOOR KOOTARI THAZHA KUNIYIL, 'SREE NILAYAM', CHORODE AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. W.P.(C) No.3715/2008 : 2 : 7. EDAVATHANATH SEETHA AMMA, AYIMBADI THOTTATHIL, VILAYATTOOR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.T.P.KELU NAMBIAR (SR.) SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENTS: ------------- 1. PONNARI VENGOLI ACHUTHAN NAIR, NOCHIYIL, VANMUGHAM AMSOM, CHINGAPURAM DESOM, P.O.CHINGAPURAM, KOYILANDY, KOZHIKODE DISTRICT. 2. DO.PADMANABHANNAIR, THAZHATHEPATT HOUSE, NADERI AMSOM, KAVUMVATTOM DESOM, P.O.KAVUMVATTOM, KOYILANDY, KOZHIKODE DISTRICT. 3. DO. PADMAVATHY AMMA, THALAPPARAMBATH HOUSE, PURAKKAD AMSOM, KOZHIPPURAM DESOM, P.O.PURAKKAD, KOYILANDY, KOZHIKODE DISTRICT. 4. DO. JANAKI AMMA, MEERANGATT HOUSE, NADERI AMSOM, KAVUMVATTOM DESOM, P.O.KAVUMVATTOM, KOYILANDY, KOZHIKODE DISTRICT. 5. PONNARI VENGOLI MEENAKSHI AMMA, MANATHANKANDY HOUSE, PURAKKAD AMSOM, KOZHIPPURAM DESOM, P.O.PURAKKAD, KOYILANDY, KOZHIKODE DISTRICT. 6. DO. PUSHPA AMMA, THOTTATHIL PARAMBIL, PUTHIYARA AMSOM DESOM, P.O.PUTHIYARA, KOZHIKODE DISTRICT. 7. DO. JAYA MAMA, KOVOOR PARIPARAMBIL, 'SREELAKSHMI', KUKAYUR AMSOM DESOM, P.O.ERANHIKKAL, KOZHIKODE DISTRICT. W.P.(C) No.3715/2008 : 3 : 8. DO. AJITHA, PALAPARAMBATH HOUSE, KINALUR AMSOM DESOM, P.O.KINALUR, KOYILANDY, KOZHIKODE DISTRICT. 9. DO.USHA, OF DO. DO. 10. PONNARI VENGOLI BALAKRISHNAN NAIR, NARAYANA NILAYAM, KOVIL THAZHA, NADERI AMSOM, KAVUMVATTOM DESOM, P.O.NADERI, KOYILANDY, KOZHIKODE DISTRICT. 11. ILLATH PADMANABHAN NAIR, VANMUGHAM AMSOM, CHINGAPURAM DESOM, P.O.CHINGAPURAM, KOYILANDY, KOZHIKODE DISTRICT. 12. PADINHARE PUTHUSSERY BALAKRISHNAN NAIR, OF DO. DO. 13. VENGOLI THEKKE THALA PARAMBIL SUKUMARAN, OF DO. DO. BY ADV. SRI.P.K.MURALEEDHARAN FOR R10 TO 13 SRI.B.KRISHNAN FOR R1 TO 9 SRI.R.PARTHASARATHY FOR R1 TO 9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.3715/2008 EXT.P1 TRUE COPY OF I.A.NO.1418/2007 IN F.D.I.A.NO.275/2007 IN O.S.NO.146/1990 FILED BEFORE THE SUB COURT, KOYILANDY. EXT.P2 TRUE COPY OF OBJECTION FILED IN I.A.NO.1418/2007 IN F.D.I.A.275/2007 IN O.S.NO.146/1990 SUB COURT, KOYILANDY. EXT.P3 TRUE COPY OF ORDER DATED 21.1.2008 IN I.A.NO.1418/2007 IN F.D.I.A.275/2007 IN O.S.NO.146/1990, SUB COURT, KOYILANDY. //TRUE COPY// P.A. To Judge. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.3715 of 2008 ------------------------------- Dated this the 27th June, 2008. J U D G M E N T Petitioners are defendants 10 to 16 in O.S.No.146 of 1990, on the file of the Sub Court, Koyilandy. Pursuant to a preliminary decree, I.A.No.275/2007 was filed for passing a final decree, in accordance with the preliminary decree. When the final decree application is pending, I.A.No.1487/2007 was filed by respondents 1 to 4, the plaintiffs in the suit, for appointment of the receiver or in the alternative for auctioning the usufructs in between the parties. Under Ext.P3 order, learned Sub Judge appointed a commission to auction the usufructs for one year. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for petitioners and contesting respondents were heard. 3. The learned counsel appearing for the petitioners argued that as per the preliminary decree, petitioners are liable to pay share of profits to the other sharers and that preliminary decree is W.P.(C) No.3715/2008 2 being challenged in A.S.No.13 of 1995 pending before this Court, and in such circumstances, when throughout the property has been in the possession of the petitioners, learned Sub Judge should not have appointed a Commission to auction the usufructs, as sought for by the respondents. 4. The learned counsel appearing for the respondents submitted that petitioners are committing damages by cutting and removing trees and in order to make available the share of profits due to the petitioners, learned Sub Judge directed to auction the usufructs for one year, and there is no reason to interfere with Ext.P3 order. The learned counsel also argued that petitioners are not maintaining the property and are committing damages. On hearing the learned counsel, I do not find any necessity to auction the right to collect the usufructs as allowed by the learned Sub Judge in Ext.P3 order. Admittedly, petitioners have been in possession of the property right from 1990 onwards, when the suit was filed. Till the date of Ext.P3 order, possession of petitioners or their right to collect usufructs was not disturbed. The learned counsel appearing for petitioners further submitted that first appeal is W.P.(C) No.3715/2008 3 ripe for disposal. In such circumstances, learned Sub Judge should not have directed auctioning of the usufructs, as has been done under Ext.P3 order. Hence, Ext.P3 order is quashed. If grievance of respondents 1 to 9 is that petitioners are cutting and removing trees or not maintaining the property, or causing damage to the property, they are at liberty to move the appellate court for appointment of a receiver. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.