Allowed

Muhammedkutty v. Ayisha

Kerala HC15 Jun 2022OP(C)/582/2020

Case brief

AI extract

What is this about?

The High Court of Kerala matters, exercising supervisory jurisdiction under Article 227, set aside the subordinate court's order dismissing a belated application to remit an Advocate Commissioner report and directed appointment of a new commission for effective partition. The High Court emphasized technical dismissal despite underlying non-cooperation hindering effective inspection and remitted th

What did the court decide?

The petition is allowed; Exhibit P7 order and Exhibit P3 commission report are set aside; a new Advocate Commissioner is to be appointed within three months to effectively carry out partition after co

Muhammedkutty Vs Ayisha — Partition | Kerala HC (2022)

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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 C.S.DIAS

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WEDNESDAY, THE 15TH DAY OF JUNE 2022 / 25TH JYAISHTA, 1944

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OP(C) NO. 582 OF 2020

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OS 181/2014 OF MUNSIFF MAGISTRATE COURT,PATTAMBI

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PETITIONER:

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1 MUHAMMEDKUTTY

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AGED 57 YEARS

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S/O. POKKER, KUNDILAPEEDIKAYIL HOUSE, THRITHALA AMSOM,
NJANGATTERI, PATTAMBI TALUK, PALAKKAD DISTRICT.

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2 UMMER

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AGED 55 YEARS

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S/O. POKKER, KUNDILAPPEDIKAYIL HOUSE, THRITHALA AMSOM,
NJANGATTERI, PATTAMBI TALUK, PALAKKAD DISTRICT.

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BY ADVS.
K.MOHANAKANNAN
SMT.T.V.NEEMA

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RESPONDENT:

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1 AYISHA

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D/O. POKKER, KUNDILAPEEDIKAYIL HOUSE, THRITHALA AMSOM,
NJANGATTERI, PATTAMBI TALUK,
PALAKKAD DISTRICT - 679 534.

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2 ABOOBACKER S/O. POKKER, KUNDILAPEEDIKAYIL HOUSE, THRITHALA AMSOM, NJANGATTERI, PATTAMBI TALUK, PALAKKAD DISTRICT - 679534.

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BY ADV SRI.P.K.MOHANAN(PALAKKAD)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO.582 OF 2020 2

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Dated this the 15^th day of June, 2022

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JUDGMENT

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The original petition is filed to set aside the order dated 04.02.2020 in IA No.434/2019 in FDIA No.827/2016 in OS No.181/2014 (Exhibit P7) of the Court of the Munsiff, Pattambi.

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The petitioners are the defendants 1 and 3 in the above suit filed by the first respondent, seeking a decree of partition. A preliminary decree was passed in the suit. Thereafter, the first respondent had filed Exhibit P2 application to pass the final decree. An advocate Commissioner was appointed, who filed Exhibit P3 commission report. The petitioners then filed Exhibit P4 application to remit Exhibit P3 report. The first respondent objected to Exhibit P4 by filing Exhibit P5 objection. The court below, after considering Exhibits P4 and P5, dismissed Exhibit P4 application by Exhibit P7 order on the ground that the application is highly belated.

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OP(C) NO.582 OF 2020 3

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The petitioners contend that Exhibit P7 is erroneous because, the allotment of shares proposed by the Advocate Commissioner is unworkable. The matter needs to be reconsidered. Hence, the original petition.

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Heard, Sri. K. Mohanakannan, the learned the counsel appearing for the petitioners and Sri. P.K Mohanan, the learned counsel appearing for the first respondent. Since the second respondent is not party to Exhibit P7 order, I dispense with notice to the second respondent.

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Exhibit P7 impugned order shows that the court below has principally dismissed Exhibit P4 application on the ground that the same is belated. Nonetheless, the court below has observed that the Advocate Commissioner has not effectively carried out the inspection due to the non-cooperation of the parties. Hence, it remains a fact that there is no effective commission report on record and Exhibit P4 has been dismissed on a technical ground.

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In the above factual circumstances, to do

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OP(C) NO.582 OF 2020 4

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complete justice to both the petitioners and the respondents, I am of the definite view that Exhibit P3 report is to be set aside and a new Advocate Commissioner is to be appointed and be directed to effectively carryout the partition, after adverting to Exhibit P4 application and P5 objection.

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In the result, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, I allow the original petition by setting aside Exhibit P7 order and Exhibit P3 commission report. The court below shall appoint a new Advocate Commissioner, to effectively carry out the partition, who shall also advert to Exhibit P4 application and Exhibit P5 objection. The parties would be at liberty to file their respective work memos, if any, also before the Advocate Commissioner. The remuneration of the Advocate Commissioner shall be fixed by the court below. The needful shall be done within a period of three months from the date of receipt of a certified copy of this judgment. On a consideration of the fact that the suit is

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OP(C) NO.582 OF 2020 5

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of the year, 2014, I direct the court of the Munsiff, Pattambi, to consider and dispose of the suit as

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expeditiously as possible.

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The original petition is ordered accordingly.

SD/-

C.S.DIAS, JUDGE

rmm16/06/2022

OP(C) NO.582 OF 2020 6

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APPENDIX OF OP(C) 582/2020

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PETITIONER EXHIBITS

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EXHIBIT P1TRUE COPY OF PLAINT OS 181/2014 OF
MUNSIFF MAGISTRATE COURT, PATTAMBI.
EXHIBIT P2TRUE COPY OF I.A.NO.827/2016 IN OS
181/2014 OF MUNSIFF MAGISTRATE COURT,
PATTAMBI.
EXHIBIT P3TRUE COPY OF THE COMMISSION REPORT AND
PLAN SUBMITTED IN FDIA 827/2016 IN OS
181/2014 MUNSIFF MAGISTRATE COURT,
PATTAMBI.
EXHIBIT P4TRUE COPY OF AFFIDAVIT DATED 30.5.2019 IN
SUPPORT OF IA 434/2019 IN FDIA 827/2016
IN OS 181/2014.
EXHIBIT P5TRUE COPY OF THE OBJECTION TO IA 434/2019
ON 27.6.2019 IN OS 181/2014 OF MUNSIFF
MAGISTRATE COURT, PATTAMBI.
EXHIBIT P6TRUE COPY OF THE OBJECTION FILED IN MAY
2019 TO THE COMMISSIONER'S REPORT DATED
15.6.2019.
EXHIBIT P7TRUE COPY OF THE ORDER DATED 4.2.2020 IN
IA 434/2019 IN FDIA 827/2016 IN OS
181/2014 ON THE FILE OF MUNSIFF
MAGISTRATE COURT, PATTAMBI.

Muhammedkutty v. Ayisha

Case brief

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Muhammedkutty v. Ayisha

Case brief

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