Allowed

M.K. Pradeep Kumar v. Pandara Valappil Sudhakaran

Kerala HC11 Oct 2012OP(C)/1058/2012

Case brief

AI extract

What is this about?

In this execution petition challenging an order to appoint an Advocate Commissioner, the High Court of Kerala held that deputation is unwarranted as the advocate commissioner's report already exists. The impugned order was set aside, and it was noted that defendants could raise grievances under Section 47 CPC if any.

What did the court decide?

The impugned order appointing an Advocate Commissioner (E.A. No. 507/2011) was set aside. The execution petition was dismissed. The original petition was disposed of.

M.K. Pradeep Kumar Vs Pandara Valappil Sudhakaran — Execution and Attachment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934

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OP(C).No. 1058 of 2012 (O)

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EP NO. 393/2011 IN OS.547/2008 of PRL. MUNSIFF COURT, KANNUR

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PETITIONER(S):

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M.K. PRADEEP KUMAR, AGED 59 YEARS

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S/O.PADMINI,

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RESIDING AT AISHAWARYA NEAR PAMBANKANDY, CHALAD KANNUR.

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BY ADV. SRI.P.U.SHAILAJAN

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RESPONDENT(S):

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PANDARA VALAPPIL SUDHAKARAN

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S/O.KORAN MASTER, AGED 50 YEARS RESIDING AT EDAKKOOL VALAPPIL

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KANNAPURAM AMSOM DESOM IN KANNUR TALUK AND DISTRICT.

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KAPPADAN SHEELA

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D/O.ACHUTHAN, AGED 39 YEARS RESIDING AT EDAKKOOL VALAPPIL

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KANNAPURAM AMSOM DESOM IN KANNUR TALUK AND DISTRICT.

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P.V.PRABHAKARAN

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S/O.PUTHAN VEETTIL MADHAVI, AGED 47 YEARS OCCUPATION BUSINESS, RESIDENT OF MADHAVAM NEAR CIVIL STATION, KANNUR-1 AMSOM, KARAR DESOM KANNUR MUNICIPALITY, TALUK & DISTRICT.

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RAJINI.P.V.

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D/O.PUTHAN VEETTIL MADHAVI, AGED 61 YEARS RESIDENT OF MADHAVAM, NEAR CIVIL STATION KANNUR-1 AMSOM, KARAR DESOM, KANNUR.

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P.V.KAMALA

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D/O.PUTHAN VEETIL MADHAVI, AGED 62 YEARS PUTHAN VEEDU, PALLIKKUNNU AMSOM DESOM KANNUR TALUK & DISTRICT.

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OP(C) NO. 1058/2012

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P.V.PREMA D/O.PUTHAN VEETIL MADHAVI, AGED 56 YEARS PUTHAN VEEDU, PALLIKKUNNU AMSOM DESOM KANNUR TALUK & DISTRICT.

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P.V.GEETHA D/O.PUTHAN VEETIL MADHAVI, AGED 52 YEARS PUTHAN VEEDU, PALLIKKUNNU AMSOM DESOM KANNUR TALUK & DISTRICT.

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P.V.DIVAKARAN

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D/O.PUTHAN VEETIL MADHAVI, AGED 47 YEARS PUTHAN VEEDU, PALLIKKUNNU AMSOM DESOM KANNUR TALUK & DISTRICT.

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P.V.PRATHEETHA

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D/O.PUTHAN VEETIL MADHAVI, AGED 44 YEARS PUTHAN VEEDU, PALLIKKUNNU AMSOM DESOM KANNUR TALUK & DISTRICT.

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BY ADV. SRI.C.K.SREEJITH

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 1058/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT P1TRUE COPY OF THE JUDGMENT DATED 28.1.2011 IN OS NO.547/2008 OF THE MUNSIFF'S COURT, KANNUR.

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EXHIBIT P2TRUE COPY OF THE PLAN.

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EXHIBIT P3TRUE COPY OF THE EXECUTION PETITION E.P.NO.393/2011 IN OS NO.547/2008.

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EXHIBIT P4TRUE COPY OF THE COMMISSION REPORT DATED 13.12.2011 IN E.P.NO.393/2011 IN OS NO.547/2008.

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EXHIBIT P5TRUE COPY OF THE COMMISSION REPORT DATED 20.12.2011 IN E.P.NO.393/2011 IN OS NO.547/2008.

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EXHIBIT P6TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE PETITION TO APPOINT AN ADVOCATE COMMISSIONER DATED 21.12.2011.

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EXHIBIT P7TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER.

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EXHIBIT P8TRUE COPY OF THE ORDER DATED 9.2.2012 IN EA NO.507/2011 IN EP NO.393/2011 IN OS NO.547/2008 DATED 9.2.2012 OF PRINCIPAL MUNSIFF'S COURT, KANNUR.

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RESPONDENTS' EXHIBITS : NIL

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/TRUE COPY/

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P.A. TO JUDGE.

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V. CHITAMBARESH, J

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OP(C) NO. 1058 OF 2012

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Dated this the 11^th day of October, 2012

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JUDGMENT

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The suit was one for a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint 'B' schedule property. The defendants were also restrained from making any construction or annexing portion of the plaint 'B' schedule property which is a pathway leading to the plaint 'A' schedule property. The suit was decreed as prayed for and the compound wall constructed was also demolished in enforcement of the decree.

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There is already a report and plan of the Advocate Commissioner deputed in the suit which forms part of the record. The execution court cannot therefore depute another Advocate Commissioner to locate the decree schedule property or identify the same. The deputation of an Advocate Commissioner at the instance of the defendants in an execution petition already terminated is unwarranted.

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The impugned order is set aside and E.A. No. 507/2011 in E.P. No. 393/2011 in O.S. No. 547/2008 on the

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OP(C) No. 1058/2012

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file of the court of the Principal Munsiff of Kannur is dismissed. This however will not disable the defendants from calling in aid Section 47 of the Code of Civil Procedure if they have any grievance relating to the execution, discharge or satisfaction of the decree.

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The Original Petition is disposed of.

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V. CHITAMBARESH JUDGE

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ncd

M.K. Pradeep Kumar v. Pandara Valappil Sudhakaran

Case brief

What is this about?

What did the court decide?

M.K. Pradeep Kumar v. Pandara Valappil Sudhakaran

Case brief

What is this about?

What did the court decide?

What the court decided

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