IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 F.A.O.No. 153 of 2008() --------------------- AGAINST THE ORDER DATED 26/03/2008 IN I.A.NO.691/07 IN A.S.NO.41/2006 OF SUB COURT, SULTHANBATHERY .................... APPELLANTS/RESPONDENTS 1,3 & 4/ APPELLANTS 1,3&4: --------------------------------------------------- 1. VISWANATHAN NAIR, SON OF LATE KUTTYKRISHNAN NAIR, CHEERAL AMSOM DESOM, BATHERY TALUK, WAYANAD. 2. P.K.CHANDRAN NAIR, SON OF LATE KUTTYKRISHNAN NAIR, CHEERAL ASOMM DESOM, BATHERY TALUK, WAYANAD. 3. P.K.BHASKARAN NAIR (WRONGLY REPEATED AS P.K.BALAKRISHNAN NAIR IN THE IMPUGNED ORDER) SON OF LATE KUTTYKRISHNAN NAIR, CHEERAL AMSOM DESOM, BATHERY TALUK, WAYANAD. BY ADV. SRI.S.EASWARAN RESPONDENTS/PETITIONERS/RESPONDENTS: ------------------------------------ 1. MEENAKSHI, SWASTHAM, KOODATHINGAL VEED, D/O.GOVINDAN NAIR, CHEERAL AMSOM DESOM, BATHERY TALUK. 2. KOODATHINGAL VIJAYALAKSHMI, SWASTHAM, CHEERAL AMSOM DESOM, CHEERAL, SULTHAN BATHERY. 3. VIJESH, SON OF MEENAKSHI, SWASTHAM, CHEERAL AMSOM DESOM, CHEERAL, SULATHAN BATHERY. BY ADV. SRI.SARVOTHAMAN - R1 TO R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O.No. 153 /2008 ORDER ON I.A. NO.2486 OF 2008 IN F.A.O NO.153 OF 2008 DISMISSED SD/ 25/08/2008 M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE scm M.N.KRISHNAN, J. -------------------------- F.A.O. No. 153 OF 2008 --------------------- Dated this the 25th day of August, 2008 JUDGMENT This appeal is preferred against the order appointing the receiver in AS No.41/06. The suit is one for partition. As per the preliminary decree passed by the court, the plaintiff is entitled to one out of five shares and defendants 1 to 4 are entitled to one out of four shares each. The suit was filed in the year 1991 and the plaintiff is still awaiting orders of the court for his entitlement and enjoyment of the property. Admittedly, the defendants are in possession of the property and the plaintiff is entitled to get his share profits in the event of his success in the case. It is a matter that is pending consideration in the appeal before the appellate court in AS No.41/06. 2. The appointment of a receiver is done when it is only just and convenient for the court and when there is scramble for possession of the property. Admittedly, there is no scramble for possession of the property in this case. But it has to be remembered that ultimately if the plaintiff succeeds he is entitled to share of profits from the property. So, in any way, a person in possession should not continue to enjoy the property without any accountability whatsoever for a long number of years. But it is not a ground to appoint a third person as a receiver which may affect the entire aspect. Therefore, I do not think this is a proper case where the FAO No.153/08 2 court should have appointed an Advocate as a receiver of the property. 3. Therefore the said order is set aside. I direct the court below to consider the question whether the defendants can be permitted to deposit a reasonable amount towards share of profits due to the plaintiff which may lie in court deposit and be disbursed depending upon the ultimate result of the suit. I make it clear that the court shall not take into consideration that the amount to be deposited would start from 1991 onwards. It has to fix a reasonable amount and direct it to be deposited. At the same time, I also make it very clear that there is no point in unnecessarily prolonging this litigation, which has already crossed 17 years. I direct the learned Subordinate Judge to dispose of AS No.41/06, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The appeal is disposed of accordingly. M.N.KRISHNAN, JUDGE vps FAO No.153/08 3