IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 WP(C).No.34496 of 2008 ------------------------------ AGAINST THE ORDER IN IA.1005/2008 IN OS.2/2007 of SUB COURT, PERUMBAVOOR .................... PETITIONER: --------------- M.P.CHERIAN, S/O.LATE M.J.PUNNOOS, MANGALAM HOUSE, ALATTUCHIRA P.O. KODANAD, ERNAKULAM DISTRICT. BY ADV. SRI.V.J.JOSEPH SRI.P.K.ABDUL RAHIMAN (CHELAKULAM) SMT.M.V.LIGI RESPONDENTS: ----------------- 1. PRASAD PUNNOOS, S/O.LATE M.J.PUNNOOS, MANGALAM ESTATE, KODANAD KARA, ERNAKULAM DISTRICT. 2. M.P.JACOB, S/O. LATE M.J.PUNOOS, MANGALAM HOUSE, CHITTOOR ROAD, ERNAKULAM 3. M.P.PUNNOOS, S/O. LATE M.J.PUNNOOS, MANGALAM HOUSE, VANDANMEDU, IDUKKI DISTRICT. 4. AMINA JACOB, W/O.M.P.JACOB, MANGALAM HOUSE, CHITTOOR ROAD, ERNAKULAM. 5. SINDHU THOMAS, D/O.M.P.JACOB, MANGALAM HOUSE, CHITTOOR ROAD, ERNAKULAM. WP(C).No.34496 of 2008 6. OFFICIAL RECEIVER, ADDITIONAL SUB COURT, N.PARAVOOR. ADV. SRI.KURIAN ANTONY EDASSERY FOR R1 SRI.PAUL MATHEW (PERUMPILLIL) FOR R6 SRI.P.V.SREENIJIN FOR R6 SMT.K.B.SONY FOR R6 SRI.PRASUN.S FOR R6 SRI.SANU.S.PANICKER FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.34496 of 2008 APPENDIX Petitioner's Exts:- EXT.P1:- TRUE COPY OF THE JUDGMENT DT.22/03/96 IN C.M.A. NO.129/95 AND CONNECTED CASES OF THIS HON. COURT. EXT.P2:- TRUE COPY OF THE ORDER DT.05/09/96 PASSED IN C.R.P. NO.1312/96 AND C.M.A. NO.196/96. EXT.P3:- TRUE COPY OF THE TERMS AND CONDITIONS DT.23/09/99 FILED BEFORE THE SUB COURT, N. PARAVUR. EXT.P4:- TRUE COPY OF THE JUDGMENT DT.04/07/08 IN W.P.C. NO.13423/08. EXT.P5:- TRUE COPY OF THE I.A. NO.1005/08 IN O.S. NO.2/07 FILED BY THE FIRST RESPONDENT/OFFICIAL RECEIVER BEFORE THE SUB COURT, PERUMBAVOOR. EXT.P5(a):- TRUE COPY OF THE TERMS AND CONDITIONS FILED ALONG WITH EXT.P5. EXT.P6:- TRUE COPY OF THE OBJECTION DT.30/09/08 FILED BY THE PETITIONER IN EXT.P5. EXT.P7:- TRUE COPY OF THE ORDER DT.11/11/08 IN I.A. NO.1005/08 IN O.S. NO.2/07 OF THE SUB COURT, PERUMBAVOOR. //TRUE COPY// K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34496 of 2008 ------------------------------------------------ Dated this the 27th day of November, 2008 JUDGMENT The official receiver, petitioner and the respondents are all present and the submissions made by them are heard. Parties raised various objections to the conditions framed by the present official receiver for auction of the right to take yield among the parties to the suit vide Ext.P7 order of the court below. After advancing several arguments from various corners, counsel appearing for the parties are unanimous that Ext.P3 conditions for auction which was prevailing from 1999 onwards can be accepted as the condition of auction; that condition Nos.1, 2 and 4 in Ext.P7 order are already there in Ext.P3 conditions and that clause No.3 of the conditions under para 8 of Ext.P7 order may not be workable, but at the same time, the W. P. C. No.34496 of 2008 -2- corresponding conditions fixed in Ext.P3 is the condition in column No.11, but that the said condition also lacks clarity and it has to be modified incorporating also condition as in clause No.3 of Ext.P7, but with modifications. 2. In the result, considering the suggestions made by counsel for the parties and the official receiver, I modify clause No.11 of Ext.P3 as follows:- The minimum amount by which the bid amount can be raised after the initial bid by the bidders considering the extent of the property and nature of cultivation in the property shall be Rs.10,000/- up to Rs.2 lakhs and thereafter, the bid can be raised in units of Rs.5,000/- only. Thus, modifying clause No.11 of Ext.P3, I finalise the conditions of auction as agreed to by all parties and the official receiver and I direct that the W. P. C. No.34496 of 2008 -3- auction shall be conducted positively on 29/11/08 at 11.00 a.m. at the office of the official receiver at North Parur and the bid shall be knocked down in the name of the party who makes the highest bid. All payments shall be made by the bidders and after the bid by the successful bidder either in cash or by way of draft and the official receiver shall not accept payment in any other mode. 3. This Writ Petition is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/- W. P. C. No.34496 of 2008 -4- K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34496 of 2008 ------------------------------------------------ Dated this the 21st day of November, 2008 ORDER Counsel for the petitioner presses for urgent orders in this Writ Petition contending that the right to take usufructs is being auctioned by the official receiver today in compliance with the order impugned. The order impugned is Ext.P7 and thereunder the direction given by the court to the receiver is that the auction shall be conducted from the office of the official receiver between 10.00 a.m and 5.00 p.m and that vide Ext.P7 order dt.11/11/08 the receiver has fixed the date of auction to this day and auction is going on. The petitioner who challenges Ext.P7 order dt.11/11/08 has applied for a copy of the said order only on 19/11/08 and the court has issued copy on the very next day namely on 20/11/08 and he has approached this Court today to stop the auction which started at W. P. C. No.34496 of 2008 -5- 10.00 a.m today. The petitioner is not entitled to any interim orders stopping the auction proceedings. The question as to whether Ext.P7 order is sustainable or not is a matter to be considered after notice to the respondents. Advocate Sri.Febin enters appearance for respondents 2, 4 and 5. Issue notice by special messenger as desired by the counsel for the petitioner to other respondents namely respondents Nos.1, 3 and 6. Post on 26/11/08. K.P.BALACHANDRAN, JUDGE kns/-