IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 16426 of 2010(O) -------------------------- OS.328/1993 of SUB COURT,KATTAPPANA .................... PETITIONERS: --------------- 1. MURALEEDHARAN, BIJU BHAVAN, BLOCK NO.403, THOOKKUPALAM KARA, KALLAR P.O., KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK. 2. BIJIMOL M., BLOCK NO.406, THAMARAN HOUSE, THOOKKUPALAM KARA, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK. 3. BIJUMON, BLOCK NO.403, BIJU BHAVAN, THOOKKUPALAM KARA, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT: --------------- VALSALA, W/O. SOMAN, BLOCK NO.413, PUTHAMPURACKAL HOUSE, THOOKKUPALAM KARA, KARUNAPURAM VILLAGE, KALLAR P.O., UDUMBANCHOLA TALUK. ADV. SRI.MILLU DANDAPANI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.16426 OF 2010 APPENDIX PETITIONERS' EXHIBIS: EXHIBIT P1 : ORDER DTD. 19.12.2008 IN I.A.NO.738 OF 2004 IN O.S.NO.338 OF 1993, SUB COURT, KATTAPPANA EXHIBIT P2 : DETAILED ESTIMATE OF THE BUILDING EXHIBT P3 : EXECUTION PETITION DTD.28.01.2010 BY THE RESPONDENT EXHIBIT P4 : ORDER DTD. 15.03.2010 IN E.A.NO.68 OF 2010 IN E.P.NO.3 OF 2010 IN O.S.NO.338 OF 1993 EXHIBIT P5 : REPORT OF the COMMISSIONER DTD. 07.04.2010 ALONG with the ANNEXURES EXHIBIT P6 : AFFIDAVIT AND PETITION BY the RESPONDENT DTD.08.04.2010 EXHIBIT P7 : OBJECTION DTD. 08.04.2010 BY THE PETITIONERS EXHIBIT P8 : AFFIDAVIT AND PETITION DTD. 08.04.2010 BY THE PETITIOENRS EXHIBIT P9 : COMMON ORDER DTD. 09.04.201. IN E.A.NO.68 OF 2010 IN E.P.NO.3 OF 2010 IN O.S.NO.338 OF 1993,SUB COURT, KATTAPPANA RESPONDENT'S EXHIBITS : NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.16426 of 2010 --------------------------------------- Dated this 28th day of June, 2010 JUDGMENT In respect of a building consisting of two rooms, one a little bigger in size than the other parties sought partition and got a preliminary decree. In the course of final decree proceeding, Advocate Commissioner along with the expert inspected the property and reported that for division of property in tune with the preliminary decree the existing wall in between the two rooms has to be removed and a new wall has to be put up. Commissioner estimated the expense for the said purpose as Rs.50,483.55/-. Accepting that report, learned Sub Judge passed a final decree (Ext.P1) in accordance with the final decree. In the presence of Advocate Commissioner and expert the suggestion earlier made for equalization of shares was carried out and Commissioner filed report. Commissioner reported that the amount actually spent by petitioners/judgment debtors was Rs.16,009/-. Petitioners/judgment debtors filed Ext.P8, application for withdrawal of the sum of Rs.50,483.55/- which according to the petitioners was deposited in tune with direction in the final decree. Ext.P6, application was moved by the respondent for withdrawal of W.P.C.No.16426 of 2010 : 2 : the amount less Rs.16,009/- which alone according to her is due to the petitioners. Learned Sub Judge considered rival contentions and passed Ext.P9, order dismissing Ext.P8, application preferred by the petitioners and allowing on Ext.P6, application. In short, petitioners is now allowed to withdraw Rs.16,009/- while rest of the amount deposited by the respondent/decree holder is to go to them. That order is under challenge at the instance of the petitioners. Learned counsel for petitioners contend that by passing Ext.P9, order the court has gone behind the final decree which directed payment of Rs.50,483.55/- to the petitioners for equalization of shares and for construction of the structures for the said purpose. It is also contended by learned counsel that at any rate, executing court has merely relied on the report of Advocate Commissioner and petitioners were not given an opportunity to adduce evidence in support of their claim that they have spent more than Rs.16,009/- for construction of wall for equalization of shares in tune with the final decree. Ext.P9, order may be set aside and Ext.P8, application may be allowed allowing them to withdraw Rs.50,483.55/-. Learned Senior Advocate appearing for respondent in response contended that what is directed in the final decree is not payment of Rs.50,483.55/- to the petitioners but a direction to the respondents to deposit the said amount being the estimated cost of construction as recommended W.P.C.No.16426 of 2010 : 3 : by the Advocate Commissioner and expert which did not mean that the entire sum of Rs.50,483.55/- has to be paid to the petitioners. Learned Senior Advocate maintains that entitlement of petitioners is only to the actual expenses incurred by them for equalization of shares which the Advocate Commissioner has reported to be Rs,16,009/-. It is contended that no objection is seen filed by the petitioners to the report of Advocate Commissioner. Learned Senior Advocate has drawn my attention to Ext.P9, the final decree and Ext.P4, interim order passed by the executing court on E.A.No.78 of 2010. 2. It requires an interpretation of direction contained in the final decree to decide the controversy involved. But petitioners raised grievance that they were not given an opportunity to adduce evidence against Ext.P5, report which states that actual amount spent is Rs.16,009/-. True, respondent has a contention that at no point of time there was any request from the side of petitioners to adduce evidence as to the amount allegedly spent by them in excess of Rs.16,009/-. Having regard to the contentions raised by either side and in view of the manner in which I propose to dispose of this writ petition I am not deciding the controversy as to whether final decree directed payment of the sum of Rs.50,483.55/- to the petitioner or it only directed respondent to deposit the estimated cost of construction. That is a matter which W.P.C.No.16426 of 2010 : 4 : the executing court can decide. I am inclined to give both sides opportunity to adduce evidence in respect of their respective contentions as to the amount actually spent by petitioners. Accordingly, writ petition is allowed in the following lines: (i) Ext.P9, order disposing of Exts.P7 and P8 application is set aside. (ii) Exts.P7 and P8 are remitted to the executing court for fresh decision as to the actual amount spent by the petitioners for equalization of shares. (iii) It will be open to both sides to adduce evidence in support of their claims. (iv) After recording evidence, executing court shall decide taking into account the direction contained in the final decree whether entitlement of petitioners is for the amount stated in the final decree or for the amount spent by them. (v) Parties shall appear in the executing court on 20-07-2010. That court shall dispose of the application as expeditiously as possible. (THOMAS P JOSEPH, JUDGE) Sbna/-