Allowed

Wattasseril Koshy Joseph v. Vimala Kumari Amma

Kerala HC15 Oct 2012OP(C)/1847/2012

Case brief

AI extract

What is this about?

The High Court of Kerala set aside an order preventing the determination of sale consideration in execution proceedings. The court held that the extent of the property must first be ascertained by a Commissioner in the specific performance suit before execution can proceed.

What did the court decide?

Petition allowed; I.A. No.4626/2011 allowed; Court below directed to depute Advocate Commissioner with Taluk Surveyor to identify and measure the property.

Wattasseril Koshy Joseph Vs Vimala Kumari Amma — Specific Performance | 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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MONDAY, THE 15TH DAY OF OCTOBER 2012/23RD ASWINA 1934

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OP(C).No. 1847 of 2012 (O)

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OS.49/2009 of II ADDL.SUB COURT,TRIVANDRUM

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PETITIONER(S):

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WATTASSERIL KOSHY JOSEPH, AGED 71 YEARS S/O.W.J.KOSHNY, AGED 71 YEARS & WATTASSERIL VEEDU & PEDIKATTU MURI AKKULAM ROAD, ULLOOR,THIRUVANANTHAPURAM - 11.

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BY ADVS.SRI.G.P.SHINOD

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SRI.RAM MOHAN.G. SRI.MANU V.

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RESPONDENT(S):

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1. VIMALA KUMARI AMMA D/O.MADHAVI AMMA, & KOTTIYODU VEEDU& T.C.NO.5/292(1)

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NEAR GOVERNMENT AYURVEDA DISPENSARY, CHERUVAIKKAL SREEKARIYAM (P.O), THIRUVANANTHAPURAM.

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2. SAJU.S. S/O.VIMALAKUMARI AMMA, KOTTIYODU VEEDU" T.C.NO.5/292 (1)

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NEAR GOVERNMENT AYRUVEDA DISPENSARYCHERUVAIKKAL SREEKARIYAM (P.O), THIRUVANANTHAPURAM.

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R1&2 BY ADV. SRI.V.SURESH R1&2 BY ADV. SRI.G.SUDHEER

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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tss

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W.P.(C) NO.1847/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXT.P-1:- COPY OF THE PLAINT IN O.S.NO.49 OF 2009 ON THE FILES OF THE II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

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EXT.P-2:- COPY OF THE WRITTEN STATEMENT IN O.S.NO.49 OF 2009 ON THE FILES OF THE II ADDITIONAL SUB COURT,THIRUVANANTHAPURAM.

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EXT.P-3:- COPY OF THE PETITION IN I.A.NO.4626 OF 2011 IN O.S.NO.49 OF 2009 FILED BEFORE THE II ADDITIONAL SUB COURT,THIRUVANANTHAPURAM.

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EXT.P-4:- COPY OF THE OBJECTION FILED IN I.A.NO.4626 OF 2011 IN O.S.NO.49 OF 2009 BEFORE THE II ADDITIONAL SUB COURT,THIRUVANANTHAPURAM.

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EXT.P-5:- COPY OF THE ORDER DATED 06.01.2012 IN I.A.NO.4626 OF 2011 IN O.S.NO.49 OF 2009 OF THE II ADDITIONAL,SUB COURT, THIRUVANANTHAPURAM.

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RESPONDENTS' EXHIBITS

NIL

//TRUE COPY//

P.A. TO JUDGE

tss

V.CHITAMBARESH,J.

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= = = = = = = = = = =

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O.P.(C) No. 1847 of 2012

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= = = = = = = = = = = == = = = = Dated this the 15^th day of October, 2012

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J U D G M E N T

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The sale consideration is dependant on the extent of the land available on ground as revealed from the explicit terms of the agreement for sale. The court below therefore erred in not deputing an Advocate Commissioner to identify and measure the plaint schedule property. The same requires to be done with reference to the documents of title in the suit for specific performance of the agreement. The extent of the property or its sale consideration cannot be relegated to the execution proceedings as has been done by the court below by the order impugned.

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The impugned order is set aside and I.A No.4626/2011 in O.S No.49/2009 on the file of the Court of the IInd Additional Subordinate Judge of Thiruvananthapuram is allowed. The court below is directed to depute an Advocate Commissioner to file the report with the assistance of a Taluk Surveyor in a time bound manner.

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The original petition is allowed. No costs.

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smm

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V.CHITAMBARESH,JUDGE

JUDGE

smm

smm

Wattasseril Koshy Joseph v. Vimala Kumari Amma

Case brief

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Wattasseril Koshy Joseph v. Vimala Kumari Amma

Case brief

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