Allowed

Tharayil Sadhana v. Tharayil Ramachandran

Kerala HC30 Sept 2016OP(C)/2278/2016

Case brief

AI extract

What is this about?

In a petition under Article 227 seeking speedy disposal of final decree proceedings in a partition suit pending since 1996, the High Court accepted a report from the Sub Judge and directed the subordinate court to dispose of the application within four months from October 31, 2016.

What did the court decide?

The Sub Judge, Tirur is directed to dispose of I.A. No.2065/1996 to pass final decree within four months from 31.10.2016.

Tharayil Sadhana Vs Tharayil Ramachandran — 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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FRIDAY, THE 30TH DAY OF SEPTEMBER 2016/8TH ASWINA, 1938

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OP(C).No. 2278 of 2016 (O)

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--------------------------I.A. NO.2065/1996 IN O.S. NO.66/1993 OF SUB COURT, TIRUR.

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PETITIONER(S):

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THARAYIL SADHANA, AGED 51 YEARS, D/O.LATE SREEDHARAN, RESIDING AT A/4, PARVATH DARSHAN CHS LTD, NEXT TO MNS GYANKHANA, SHRINAGAR, THANE, MUMBAI, (REPRESENTED BY POWER OF ATTORNEY HOLDER C.V. SUJITH, C/O.C.V. BALAN, AGED 45 YEARS, LAKSHMIKRIPA, KAVUMBHAGAM P.O., THALASSERY TALUK, KANNUR) PIN: 670 649.

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BY ADVS.SRI.SAJU.S.A., SMT.MEENA.A., SRI.VINOD RAVINDRANATH.

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RESPONDENT(S):

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1. THARAYIL RAMACHANDRAN, S/O.SUBRAMANIYAN, THARAYIL HOUSE, NEDUVA AMSOM, DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN: 676 101.

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2. THARAYIL PREMA, W/O.THARAYIL PRABHAKARAN , RESIDING AT -DO-. -DO-., PIN-676 101.

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3. THARAYIL PRAJITHA, D/O.THARAYIL PRABHAKARAN, RESIDING AT -DO-. -DO-., PIN-676 101.

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4. THARAYIL PRASSOON, S/O.THARAYIL PRABHAKARAN, RESIDING AT -DO-. -DO-., PIN-676 101.

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5. THARAYIL PRAVEEN, S/O.THARAYIL PRABHAKARAN, RESIDING AT -DO-. -DO-., PIN-676 101.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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OP(C).No. 2278 of 2016 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1 TRUE COPY OF I.A. NO.1287/2016 IN F.D.I.A.2065/1996 IN OS. 66/93 ON THE FILE OF SUB COURT, TIRUR, DATED 15/07/2016.

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EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 22/08/1996 IN OS.66/93 OF THE SUB COURT, TIRUR.

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EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 21/07/2010 IN A.S 50/1997 OF THIS HON'BLE COURT.

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EXHIBIT P4 TRUE COPY OF ORDER DATED 05/04/2016 OF THE HON'BLE SUPREME COURT IN S.L.P NO.34951/2010.

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EXHIBIT P5 TRUE COPY OF I.A. 2065/96 IN O.S 66/93 DATED 26/10/1996 OF TIRUR SUB COURT.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K.RAMAKRISHNAN, J.

======================== O.P.(C) No.2278 of 2016

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

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Dated this the 30^th day of September, 2016

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JUDGMENT

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This is an application filed by the petitioner seeking interference of this Court for speedy disposal of the final decree proceedings pending before the court below under Article 227 of the Constitution of India.

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2 It is alleged in the petition that petitioner is the second petitioner in FDIA No.2065 of 2016 in O.S No.66 of 1993 on the file of the Sub Court, Tirur. Petitioner has filed this petition on behalf of the other petitioners as well. Respondents are respondents 1 to 3 in the final decree proceedings. Respondents 2 and 7 in the final decree proceedings are not made party to this proceedings as they are no more. The suit was filed for partition and a preliminary decree was passed on 22.08.1996. Respondents filed A.S No.50 of 1997 before this Court and this Court by Ext.P3 judgment confirmed Ext.P2 judgment passed by the Sub Court. Challenging Ext.P3 judgment the respondents approached the

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O.P.(C) No.2278/ 2016

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apex court by filing S.L.P No.34951 of 2010 which was also dismissed by Ext.P4 order. Though commissioner report has been filed, the court below is not disposing the final decree proceedings. So the petitioner has no other remedy except to approach this Court seeking the following reliefs:

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“ a) Call for the records of the case leading

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upto Ext.P5.

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b) To direct the Sub Court, Tirur to hear and dispose of I.A 2065/96 in O.S 66/93 on its file,

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within a time limit to be fixed by this Hon'ble Court.

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c) To pass any other appropriate order or direction which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time.”

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Considering the nature of reliefs, this Court felt that

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the petition can be disposed of after getting a report from the concerned court regarding the present stage of the case and time required for disposal of the same. Accordingly, a report has been

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O.P.(C) No.2278/ 2016

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called for and the Sub Judge has sent a report, which reads as

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follows:

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“I.A No.2065/96 is an application for passing final decree in O.S.66/93 of this Court. Passing a final decree was stayed by Honourable Supreme Court and stay was vacated and the judgment of Honourable Supreme Court was produced by parties on 15.6.2016. On 14.6.2016 respondents No.2 to 6 in the final decree application filed I.A.1020/2016 for setting aside the Commissioner's report. The said application is posted for enquiry to 31.10.2016. Therefore, the time required for disposal of I.A.2065/96 will depend upon the order in i.a.1020/2016. If there is no necessity to set aside the Commissioner's report or remit the Commissioner's report, I think that he final decree application can be disposed off within a period of 4 months from 31.10.2016.”

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Heard the counsel for the petitioner and perused

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the report.

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It is seen from the allegations in the petition that

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the suit was of the year 1993 and a preliminary decree was passed in the year 1996. Though the respondents have

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O.P.(C) No.2278/ 2016

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challenged the same by filing A.S No.50 of 1997 before this Court, that was also disposed of by this Court by Ext.P3 judgment dated21.07.2010. The attempt made by the respondents challenging the same before the apex court was also in vein evidenced by Ext.P4 judgment in SLP No.34951 of 2010 dated 05.04.2016. The petitioners filed Ext.P5 petition as I.A No.2065 of 1996 in O.S No.66 of 1993 before Sub Court for passing final decree on the basis of the preliminary decree. It is seen from the documents produced itself that the case was stayed by the apex court and it was vacated and final orders have been passed only on 05.04.2016. So, it cannot be said that the Sub Judge was responsible for not passing any final decree on the basis of the application filed by the petitioner. However, considering the fact that Sub Judge has undertaken to dispose of the final decree petition within four months from 31.10.2016, this Court feels that the petition can be disposed of accepting that report. So the petition is disposed of as follows.

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The Sub Judge, Tirur is directed to expedite final decree proceedings in O.S No.63 of 1993 of that court as

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O.P.(C) No.2278/ 2016

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expeditiously as possible, at any rate, within four months from 31.10.2016 as undertaken in the report.

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Registry is directed to communicate this judgment to

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the court below at the earliest. With the above direction and observation the petition is disposed of.

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Sd/-

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K.RAMAKRISHNAN , JUDGE

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vdv/03/10/16

Tharayil Sadhana v. Tharayil Ramachandran

Case brief

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Tharayil Sadhana v. Tharayil Ramachandran

Case brief

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