Partly allowed

C.S.Swaminathan v. C.S.Sathyan

Kerala HC5 Dec 2016OP(C)/1199/2016

Case brief

AI extract

What is this about?

Petitioner challenged an order directing property auction among sharers under partition proceedings under Article 227. The parties had settled via mediation. Since the High Court could not pass a final decree there, it set aside the impugned order and remitted the matter to the lower court.

What did the court decide?

The impugned order (Ext.P4) was set aside, and the matter was remitted to the court below for disposal based on the mediation agreement.

C.S.Swaminathan Vs C.S.Sathyan — Partition | Kerala HC (2016)

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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 K.RAMAKRISHNAN

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MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938

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OP(C).No. 1199 of 2016 (O)

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---------------------------------------I.A.NO. 5198/2013 IN FDA NO. 5807/2012 IN O.S.NO. 912/2009 OF 2ND ADDITIONAL SUB COURT, ERNAKULAM

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PETITIONER(S) :

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C.S.SWAMINATHAN, AGED 51 YEARS, S/O.LATE SREEDHARAN, CHANGANATH (H), CHITTOOR ROAD, AYYAPPANKAVU, KOCHI-682 018.

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BY ADVS. SRI.B.R.MURALEEDHARAN

SRI.K.K.VINOD

SRI.K.V.SURESH

RESPONDENT(S) :

1. C.S.SATHYAN, AGED 49 YEARS, S/O.LATE SREEDHARAN, CHANGANATH (H), CHITOOR ROAD, AYYAPPANKAVU, KOCHI-682 018.

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2. C.S.SURESH, AGED 58 YEARS, S/O.LATE SREEDHARAN, CHANGANATH (H), KELAMANGALATH ROAD, PACHALAM, KOCHI-682 012.

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3. REMAHARILAL, AGED 53 YEARS, W/O.HARILAL, VETTIKKATTU HOUSE, C.S.SWAMINATHAN, AGED 51 YEARS, SHARINADA JUNCTION, EROOR P.O., TRIPUNITHURA, PIN-682 301.

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4. PRAMEELA CHANDRASEKHARAN, AGED 55 YEARS, D/O.LATE SREEDHARAN, CHANGANATH (H), KOCHUKULANGATH HOUSE, UDAYA ROAD, THYKOODAM, VYTTILA, KOCHI-682 019.

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R1 BY ADVS. SRI.M.S.UNNIKRISHNAN

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SRI.SAJU THALIATH

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SRI.JITHIN PAUL VARGHESE

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SRI.K.SUNIL

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SMT.M.PPRIYANKA

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R3 BY ADVS. SRI.K.V.JAYACHANDRAN

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SRI.RAJU V.MATHEW

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R4 BY ADV. SMT.K.TRESA RANI GEORGE

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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OP(C).No. 1199 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT-P1: THE TRUE COPY OF THE PRELIMINARY DECREE DATED 07.01.2011 IN O.S.912/2009 OF 2ND ADDL.SUB COURT, ERNAKULAM.

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EXHIBIT-P2: THE TRUE COPY OF THE INTERIM COMMISSION REPORT DATED 26.08.2013 IN FDA NO.5807/2012 IN O.S.NO. 912/2009 OF 2ND ADDL.SUB COURT, ERNAKULAM.

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EXHIBIT-P3: THE TRUE COPY OF THE OBJECTION TO INTERIM COMMISSION REPORT IN FDA NO.5807/2012 IN O.S.912/2009 OF 2ND ADDL. SUB COURT, ERNAKULAM.

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EXHIBIT-P4: THE CERTIFIED COPY OF THE ORDER DATED 30.01.2014 IN I.A 5198/2013 IN FDA NO.5807/2012 IN O.S.912/2009 OF 2ND ADDL.SUB COURT, ERNAKULAM.

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EXHIBIT-P5: THE TRUE COPY OF THE PETITION (IA 860/14) DATED 07.02.2014 IN FDA NO.5807/2012 IN O.S.912/2009 OF 2ND ADDL.SUB COURT, ERNAKULAM.

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EXHIBIT-P6: THE TRUE COPY OF THE SKETCH CLAIMING THAT OF THE PRIVATE SURVEYOR DATED NIL IN FDA NO.5807/2012 IN O.S.912/2009 OF 2ND ADDL.SUB COURT, ERNAKULAM.

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EXHIBIT-P7: THE STATEMENT FILED BY THE RESPONDENTS DATED NIL IN FDA NO.5807/2012 IN O.S.912/2009 OF 2ND ADDL.SUB COURT, ERNAKULAM.

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EXHIBIT-P8: TRUE COPY OF PETITION (IA 5326/15) TO REVIEW EXHIBIT-P4 ORDER IN FDA NO.5807/2012 IN O.S.912/2009 OF 2ND ADDL.SUB COURT, ERNAKULAM.

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EXHIBIT-P9: TRUE COPY OF NEWS PUBLISHED IN MATHRUBHUMY DAILY, DATED 01.12.2015.

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RESPONDENT(S)' EXHIBITS :

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EXHIBIT R1(A): THE TRUE COPY OF THE JOINT STATEMENT SUBMITTED BY THE RESPONDENTS HEREIN BEFORE THE COURT BELOW.

//TRUE COPY//

P.A.TO JUDGE.

Msd.

K.RAMAKRISHNAN, J.

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O.P. (Civil) No.1199 of 2016

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------------------------------------------------- Dated this the 5^th day of December, 2016

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JUDGMENT

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This petition is filed by the petitioner challenging Ext.P4 order directing the commissioner to conduct auction of the property among the sharers under Section 3 of the Partition Act, under Article 227 of the Constitution of India.

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It is alleged in the petition that the suit was filed for partition as O.S.912/2009 and after considering the contentions Ext.P1 preliminary decree for partition was passed. First respondent filed FDA 5807/2012 for passing a final decree on the basis of Ext.P1 preliminary decree and a commission was taken out and commissioner filed Ext.P2 interim report stating that the property could not be partitioned among the sharers. The petitioners filed Ext.P3 objection to the interim report and court below passed Ext.P4 order. The first respondent filed I.A.5198/2013 for sale of the property in public auction, the court below by Ext.P4 order, directed the sale to be conducted among the shares, this order is being challenged by the petitioner.

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Heard Sri.B.R.Muraleedharan, counsel appearing for the petitioner and Sri.Unnikrishnan, counsel appearing for the first respondent and Smt.Tresa Rani George counsel appearing for the 4^th

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O.P. (Civil) No.1199 of 2016

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respondent and Sri.K.V.Jayachandran counsel appearing for the 3^rd respondent.

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During the pendency of the proceedings the matter was referred to mediation and the parties settled the issues before the mediator and mediation agreement was entered into between the parties. This court cannot pass an order of final decree in a proceedings under Article 227 of the Constitution of India. Whether a decree can be passed on the basis of the mediation agreement can be considered only by the court before which the final decree proceedings are pending. Since the matter has been settled between the parties, this court feels that, the impugned order can be set aside and the matter can be remitted to the court below for the purpose of considering the question of passing a decree on the basis of the mediation report or pass appropriate orders by that court in this regard.

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So Ext.P4 order passed by the court below is set aside and the matter is remitted to the court below for fresh disposal. The Registry is directed to send the mediation agreement entered into between the parties before this court to the court below along with this judgment, so that the parties can work out their remedy before the court below for appropriate relief on the basis of the mediation agreement entered

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O.P. (Civil) No.1199 of 2016

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into between the parties.

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With the above direction and observation the petition is disposed

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of.

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Registry is directed to communicate this judgment to the concerned court, immediately.

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Sd/- (K. Ramakrishnan, Judge)

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//True Copy//

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P.A. to Judge

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C.S.Swaminathan v. C.S.Sathyan

Case brief

What is this about?

What did the court decide?

C.S.Swaminathan v. C.S.Sathyan

Case brief

What is this about?

What did the court decide?

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