Disposed

Afsal a v. Muhammedkutty

Kerala HC8 Aug 2016OP(C)/1714/2016

Case brief

AI extract

What is this about?

This judgment addresses an application for speedy disposal of an appeal regarding compensation deposited with a bank. The petitioner, now a major, seeks withdrawal of his share denied due to the appeal's pendency. The High Court directs the lower court to expedite the appeal within one year and allows interim withdrawal of the balance amount after a hearing.

What did the court decide?

Directory under the lower court to expedite the appeal within one year; liberty to the lower court to consider withdrawal of the balance bank deposit amount after a short hearing; direction to expedit

Afsal a Vs Muhammedkutty — Succession and Inheritance | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

¶4

MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938

¶5

OP(C).No. 1714 of 2016 (O) -------------------------A.S.NO.74/2015 OF SUB COURT, TIRUR.

¶6

PETITIONER:

¶7

AFSAL A, S/O.ALI (LATE), AGE 18 YEARS, ADIYATTIL HOUSE, PARAVANNUR WEST, PARAMMALANGADI, MALAPPURAM DISTRICT.

¶8

BY ADVS.SRI.BABU S. NAIR SMT.SMITHA BABU

¶9

RESPONDENT(S):

¶10

1.MUHAMMEDKUTTY,S/O.KUNHEEDU, ADIYATTIL HOUSE, KALPAKANCHERY, PARAVANNUR, PARAMMALANGADI, MALAPPURAM DISTRICT,PIN- 676 551.

¶11

*2.THE MANAGER, CANARA BANK, KALPAKANCHAERY BRANCH, MALAPPURAM DISTRICT, PIN- 676 551. ADDL. R3 TO R9 IMPLEADED 3.AMINAKUTTY, AGED 39 YEARS, W/O.ALI, ADIYATTIL HOUSE, KALPAKANCHAERY AMSOM, PARAVANNOOR DESOM, PARAMMALANGADI, TIRUR, MALAPPURAM DISTRICT, PIN - 676 551. 4.ASNA, AGED 29 YEARS, D/O.ALI, ADIYATTIL HOUSE, KALPAKANCHAERY AMSOM, PARAVANNOOR DESOM, PARAMMALANGADI, TIRUR, MALAPPURAM DISTRICT, PIN - 676 551. 5.ARSHA, AGED 20 YEARS, D/O.ALI, ADIYATTIL HOUSE, KALPAKANCHAERY AMSOM, PARAVANNOOR DESOM, PARAMMALANGADI, TIRUR, MALAPPURAM DISTRICT, PIN - 676 551.

¶12

--2--

¶13

--2--

¶14

OP(C).No. 1714 of 2016 (O)

¶15

6.ASIDA(MINOR), AGED 12 YEARS, REPRESENTED BY MOTHER AMINAKUTTY, ADIYATTIL HOUSE, KALPAKANCHAERY AMSOM, PARAVANNOOR DESOM, PARAMMALANGADI, TIRUR, MALAPPURAM DISTRICT, PIN - 676 551.

¶16

7.YOUSAF, AGED 39 YEARS, S/O.KUNHEETHU, ADIYATTIL HOUSE, KALPAKANCHAERY AMSOM, PARAVANNOOR DESOM, PARAMMALANGADI, TIRUR, MALAPPURAM DISTRICT, PIN - 676 551.

¶17

8.PATHUMMA, AGED 59 YEARS, D/O.KUNHEETHU, ADIYATTIL HOUSE, KALPAKANCHAERY AMSOM, PARAVANNOOR DESOM, PARAMMALANGADI, TIRUR, MALAPPURAM DISTRICT, PIN - 676 551.

¶18

9.AYISHA, AGED 44 YEARS, D/O.KUNHEETHU, ADIYATTIL HOUSE, KALPAKANCHAERY AMSOM, PARAVANNOOR DESOM, PARAMMALANGADI, TIRUR, MALAPPURAM DISTRICT, PIN - 676 551.

¶19

ADDL. R3 TO R9 ARE IMPLEADED AS PER ORDER DATED 08.08.2016 IN IA.1031/2016.

¶20

R1 BY ADV. SMT.N.DEEPA R2 BY SRI.PAULY MATHEW MURICKEN, SC

¶21

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶22

mbr/

¶23

OP(C).No. 1714 of 2016 (O)

¶24

APPENDIX

¶25

PETITIONER(S)' EXHIBITS:

¶26

EXHIBIT P1 : TRUE COPY OF THE JUDGMENT IN O.S.NO.55/2014 OF THE MUNSIFF COURT, TIRUR DATED 29-06-2015. EXHIBIT P2 : TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 23-07-2015. RXHIBIT P3 : TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 28-03-2016. EXHIBIT P4 : TRUE COPY OF THE REPLY DATED 20-04-2016 GIVEN BY THE 2ND RESPONDENT TO THE PETITIONER.

¶27

RESPONDENT(S)' EXHIBITS: NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

K.RAMAKRISHNAN, J.

===================

O.P.(C). No.1714 of 2016

¶34

======================= Dated this the 8^th day of August, 2016

¶35

JUDGMENT

¶36

This is an application filed by the petitioner who

¶37

is the 4^th respondent in the appeal. A.S. No.74 of 2015 of Sub court, Tirur for speedy disposal of appeal under Article 227 of the Constitution of India.

¶38

The case of the petitioner in the petition was that he is the 4^th respondent in A.S. 74 of 2015 of Sub Court, Tirur. The petitioner is the son of late Ali Adiyattil who died in a Motor Vehicle accident on 23.07.2011 while he was working abroad. The compensation amount was deposited in the 2^nd respondent Bank in the name of mother and other sisters of the petitioner. The wife and other major children of Ali Adiyattil have withdrawn the amount due to them from the deposit. The suit O.S. No.55 of 2014 was filed by the 1^st respondent herein alleging that he is the brother of the deceased. As per Muhammedian Law, the mother of the 1^st respondent is also having 1/6^th share according to the

¶39

O.P.(C). No.1714 of 2016 -2-

¶40

plaintiff in that suit and he being one of the legal heirs of the deceased mother and late Ali, they are also entitled to get share in the property along with the amount in deposit. The court below after evidence decreed the suit in part, granting partition of immovable properties, but rejected the claim of the plaintiff in respect of the amount in deposit with the Bank, as compensation awarded to the deceased Ali from his employer.

¶41

Aggrieved by the same, he filed A.S. No.74 of 2015 before Sub Court, Tirur and that is pending. On account of the appeal, the petitioner is not able to withdraw the amount from the Bank and it is his amount alone in his deposit. Others have already withdrawn and another minor sister's amount alone is in deposit. Now he attained majority. On account of the pendency of the appeal, he is not able to withdraw the amount. So, that prompted him to file this application for speedy disposal of the appeal. Hence the petition.

¶42

Heard the learned Counsel for the petitioner Smt. Smitha Babu and Smt. Deepa, learned counsel appearing for

¶43

O.P.(C). No.1714 of 2016 -3-

¶44

1^st respondent and Shri. Pouly Mathew, Standing Counsel for the 2^nd respondent.

¶45

Notice to other respondents has been dispensed

¶46

with as their presence is not recorded to dispose of the petitioner.

¶47

The Counsel for the petitioner submitted that on account of the pendency of the appeal, he is not able to withdraw his share in the amount in deposit, especially when his mother and other major siblings have already withdrawn the amount. Further the appellant in the appeal is claiming only 1/6^th share which will come to only Rs.8,55,000/-. For that purpose, it is not necessary to keep the entire amount in deposit denying the right of the petitioner to withdraw the balance amount.

¶48

On the other hand, the Counsel for the 1^st respondent submitted that all these things will have to be decided in the appeal.

¶49

The learned Standing Counsel for the 2^nd respondent submitted that they are not very much particular about the disposal of the amount. But they want only some

¶50

O.P.(C). No.1714 of 2016 -4-

¶51

orders from the court.

¶52

A report has been called for regarding the status of the appeal pending before that court and the Sub Judge has sent a report which reads as follows:-

¶53

“A.S. 74/2015 is posted for lower court records and for hearing I.A.1181/15 to 22.9.2016. With regard to the time required for disposal of the appeal, I may submit about the present pendency of cases before this court. As on 30.6.2016, 608 appeals are pending, of which 150 cases are more than 5 years old. Altogether 556 Original Suits are also pending before this court and out of that 114 cases are more than 5 years old. Apart from that 181 Sessions Cases and 91 Final Decree matters are also pending besides Original Petitions, Insolvency Petitions. Civil Miscellaneous Appeals and Execution Petitions. In view of the huge pendency of old cases, I may submit that minimum one year time is required for disposing A.S. 74/2015.”

¶54

It is seen from the report that Tirur Sub Court is a

¶55

heavy court with more than 608 appeals, 556 Original Suits 181 Sessions Cases 91 Final decree matters and Original Petitions and insolvency petitions and civil miscellaneous appeals apart from execution petition as well. More than five year old cases are also pending in that court. So the Sub Judge wanted at least one year time for disposal of the appeal.

¶56

O.P.(C). No.1714 of 2016 -5-

¶57

However, the learned Counsel for the petitioners submitted that if an application is filed for withdrawal of the balance amount leaving the amount of Rs.8,55,000/claimed by the appellant in the 'C' schedule to the plaint as the amount available for partition, that may be considered by that court. The entire claim made by the contesting respondents is only Rs.8,55,000/- being the share of the mother of the deceased Ali in the entire compensation deposited. Whether the mother is entitled to get a share or not is a matter to be decided in the appeal. Further, the 1^st respondent also filed an I.A. No.1181 of 2015 restraining Bank from not to disburse the amount to any of the parties and no orders have been passed in that application.

¶58

So considering the circumstances, this Court feels

¶59

that the petition can be disposed as follows:-

¶60

The Sub Judge Tirur is directed to take earnest attempt to expedite disposal of A.S. 74 of 2015 pending before that court as expeditiously as possible at any rate within the time undertaken by the court viz. one year from the date of this judgment. But in the meantime, if the petitioner files an application to withdraw the amount, less the amount claimed as 'C'

¶61

O.P.(C). No.1714 of 2016 -6-

¶62

schedule, then court below is at liberty to consider and dispose of that application as expeditiously as possible at any rate within three weeks from the date of filing of such application after hearing both sides. The court below is directed to expedite the disposal of I.A.No.1181 of 2015 filed by the 1^st respondent herein who is the appellant in the case as well along with this application.

¶63

With the above directions and observations the petition is disposed of.

¶64

Office is directed to communicate this judgment to the

¶65

court below at the earliest.

¶66

Sd/-

¶67

K.RAMAKRISHNAN, JUDGE

¶68

SKV

Afsal a v. Muhammedkutty

Case brief

What is this about?

What did the court decide?

Afsal a v. Muhammedkutty

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Appukkuttan Vs Sheeba

Jayambararaj Paduva Vs State Bank of Travancore

V.P.Vasu Vs Kandacheri Sarojini

Proper Products Private Limited Vs S.Mohandas

Muhammed Ashiq Vs Shaboom Farsana

Shiboo George Vs M/S. Santhimadam Builders and Developers