IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 OP(C).No. 3027 of 2011(O) --------------------------------------- (E.A.NO.62/2011 IN E.P.NO.48/2011 IN O.S.NO.20/2011 OF SUB COURT, CHENGANNUR) ....... PETITIONER: --------------------- K.S.VARGHESE, S/O.GEEVARGHESE, PANUVELIL VEETTIL, ELANJIMEL MURI, PULIYOOR VILLAGE, CHENGANNUR TALUK. BY ADVS. SRI.B.S.SWATHY KUMAR, SMT. ANITHA RAVINDRAN, SMT. M.G.AISHWARYA. RESPONDENT(S): --------------------------- 1. N.MANOJ, S/O.NARAYANANACHARI, VATACKATTU VEETTIL, THURUTHIMEL MURI, CHERIYANANDU VILLAGE, CHENGANNUR TALUK - 689 121. 2. C.MURUKESH, S/O.CHELLAPPANACHARI, THACHIRUPARAMBIL, THITTAMEL MURI, CHENGANNUR TALUK - 689 121. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.3027/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AWARD OF THE LOK ADALATH IN O.S.NO.10/2010 AND O.S.NO.27/2010. P2: COPY OF THE PLAINT IN O.S.NO.10/2010 OF THE SUB COURT, CHENGANNUR. P3: COPY OF THE PLAINT IN O.S.NO.27/2010 OF THE SUB COURT, CHENGANNUR. P4: COPY OF THE RECEIPT DTD. 30/01/2011 ISSUED BY THE RESPONDENT TO THE PETITIONER. P5: COPY OF THE E.P.NO.48/2011 IN O.S.NO.10/2010 OF THE SUB COURT, CHENGANNUR DTD. 21/06/2011. P6: COPY OF THE E.A.NO.62/2011 IN E.P.NO.48/2011 IN O.S.NO.20/2011 OF THE SUB COURT, CHENGANNUR DTD. 18/07/2011. P7: COPY OF THE ORDER IN E.A.NO.62/2011 IN E.P.NO.48/2011 IN O.S.NO.20/2011 OF THE SUB COURT, CHENGANNUR DTD. 20/07/2011. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3027 of 2011 --------------------------------------- Dated this 22nd day of September, 2011 JUDGMENT Judgment debtor in E.P.No.48 of 2011 in O.S.No.10 of 2011 of the Court of learned Sub Judge, Chengannur is the petitioner, aggrieved by Ext.P7, order on E.A.No.62 of 2011 refusing to appoint an Advocate Commissioner to show that respondent has not removed their articles from the shop room in question. 2, There were cross suits filed by the parties with respect to the shop room in question, both claiming damages from the other and petitioner claiming, in addition to damages rent arrears as well. The dispute was referred to in the Lok Adalath where it was settled and Ext.P1, award was passed whereby respondents were to vacate the shop room by 30.01.2011 and hand over its keys to the petitioner. Petitioner was to pay `.13,00,000/- (Rupees Thirteen Lakhs) to the respondents within 70 days of the award, obtain receipt and in case petitioner failed to do so, pay interest @18% per annum. Certain other terms and conditions were also imposed by Ext.P1, award. Complaining that petitioner did not pay the amount within the aforesaid time, respondents filed E.P.No.48 of 2011. O.P(C).No.3027 of 2011 -: 2 :- Petitioner raised a contention that respondents have not surrendered possession of the room in question and hence are not entitled to execute the decree for recovery of money. It is submitted that on 30.01.2011 as per Ext.P4, receipt respondents surrendered the keys of the shop room to the petitioner but, petitioner maintained that surrender of the keys did not amount to surrender of possession of the shop room since the articles (referred to in the impugned order) belonging to the respondents still remained in that room. To prove that, petitioner filed E.A.No.62 of 2011 for appointment of an Advocate Commissioner. When that matter was heard, respondents relinquished their claim over the articles if any kept in the shop room (and referred to in the impugned order). Taking note of that, learned Sub Judge dismissed E.A.No.62 of 2011. That order is under challenge. 3. Learned counsel contended that since the articles belonging to the respondents are not removed from the room, it cannot be said that possession of the room has been surrendered to the petitioner. 4. Having regard to the facts of the case I am not inclined to accept the argument. It is not disputed that on O.P(C).No.3027 of 2011 -: 3 :- 30.01.2011 the keys of the shop room were given to the petitioner. Moreover, respondents have relinquished their claim over the articles if any in the shop room. At any rate, in view of the above, it was not required to appoint an Advocate Commissioner. 5. In the light of the relinquishment made by respondents as referred to in the impugned order it is not necessary to appoint an Advocate Commissioner. There is no merit in the challenge to the impugned order. This original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-