IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WP(C).No. 17473 of 2008(E) -------------------------- OS.70/2007 of ADL.SUB COURT, THALASSERY .................... PETITIONER: PETITIONER --------------- VELIYAMBRA RAVEENDRAN, S/O. MADHAVI, VELIYAMBRA HOUSE, P.O. NARATH, NARATH AMSOM AND DESOM, KANNUR DT. BY ADV. SRI.K.V.SOHAN RESPONDENTS: RESPONDENTS ----------------- 1. VELIYAMBRA PURUSHOTHAMAN, S/O. MADHAVI, VELIYAMBRA HOUSE, KURUVANTHERU, KAMBIL, P.O. NARATH, KANNUR DT. 2. VELIYAMBRA ASHOKAN, S/O. MADHAVI, VELIYAMBRA HOUSE, P.O. NARATH, NARATH AMSOM AND DESOM, KANNUR DT. (NOW METRO PLASTIC APPORTES 1877/3,18 FORT ROAD, 2ND BLOCK, ABR LAYOUT, KOTTAYAM NAGAR.P.O, BANGALORE-43. 3. VELIYAMBRA PRAKASHAN, S/O. MADHAVI, VELIYAMBRA HOUSE, KURUVANTHERU, KAMBIL, P.O. NARATH, KANNUR DT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.17473 of 2008 ------------------------------- Dated this the 13th June, 2008. J U D G M E N T Petitioner is the defendant in O.S.No.70/2007, on the file of the Sub Court, Thalassery. Suit is for partition of the plaint schedule property and allotment of the share of the plaintiffs. In the suit, plaintiffs filed I.A.No.2926/2007, an application under Order XXXIX of Rule 1 of Code of Civil Procedure, for an order of temporary injunction restraining the petitioner from alienating the property. Under Ext.P5 order, dated 17.1.2008, learned Sub Judge passed the following order:- “Petitioners counsel seeks direction to file an affidavit. Heard. Respondent No.1 is directed to file affidavit that Plaint Schedule property shall not be alienated or disposed off till disposal of suit.” The above order is challenged in this petition filed under Article 227 of the Constitution of India. W.P.(C) No.17473/2008 2 2. The learned counsel appearing for the petitioner was heard. When a petition is filed under Order XXXIX of Rule 1 of Code of Civil Procedure, Munsiff has to consider the question whether petitioner is entitled to the order sought for. Without considering the application on merit and without an undertaking on the side of the respondent that he is prepared to file an affidavit, a direction like Ext.P5 should not have been made. In such circumstances, Ext.P5 order is quashed. Sub Judge is directed to pass appropriate orders in I.A.No.2926/2007, in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE nj.