Remanded

Sarojini Kunjumon v. Kp. Joseph

Kerala HC19 Feb 2024OP(C)/416/2024

Case brief

AI extract

What is this about?

The High Court reviewed an interim application regarding the delivery of decree schedule property. It found that a lower court order failing to address unfulfilled defects in a Commission report was unsustainable and remitted the matter for fresh consideration.

What did the court decide?

The order dated 23.01.2024 directing delivery of property was set aside and the matter was remanded to the Sub Court, Kochi for afresh consideration of the application.

Sarojini Kunjumon Vs Kp. Joseph — Execution and Attachment | Kerala HC (2024)

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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. JAYACHANDRAN

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MONDAY, THE 19^TH DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945

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OP(C) NO. 416 OF 2024

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AGAINST OS.NO. 40/2008 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB

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COURT,KOCHI

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PETITIONERS/ADDL.R2 AND R3 IN IA 632/19:

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1 SAROJINI KUNJUMON AGED 56 YEARS W/O LATE KUNJUMON, VYPPITHARA HOUSE, PUTHUVYPE DESOM, PUTHUVYPE VILLAGE, PUTHUVYPE P.O. ERNAKULAM DISTRICT, RESPONDENTS/PETITIONER/RESPOM, PIN - 682508 2 KEDAR V. KUNJUMON AGED 19 YEARS S/O LATE KUNJUMON, YEARS,VYPPITHARA HOUSE, PUTHUVYPE DESOM, PUTHUVYPE VILLAGE, PUTHUVYPE P.O. EMAKULAM DISTRICT, PIN - 682508 BY ADVS. AYSHA YOUSEFF MOLLY JACOB JOBI.A.THAMPI ASHIFA YOUSEFF FASHIYA YOUSEFF C.M.EBRAHIM SHOUKATH HUSAIN AKHEELA FARZANA RABIA BEEGAM T.K.

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RESPONDENT/PETITIONER IN IA 632/19/PLAINTIFF IN OS 40/2008:

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KP. JOSEPH AGED 77 YEARS S/O LATE KP. POULOSE, KACHAPPILLY VEETIL, KANAYANNUR TALUK, ERNAKULAM VILLAGE, THRIKANAVATTOM DESOM, ERNAKULAM NORTH, PIN - 682018

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C).No. 416 of 2024

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..2..

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J U D G M E N T

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Dated this the 19^th day of February, 2024

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Petitioners herein are the additional respondents 2 and 3 in I.A.No.632/2019 and the legal heirs of the sole defendant in O.S.No.40/2008 of the Principal Sub Court, Kochi. Vide Ext.P9 order, an application filed under Section 47 of the Code of Civil Procedure was allowed. The relevant findings are extracted here below:

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“As it is only mentioned in the report of the Amin that the decree schedule property has been delivered to the decree holder without specifically mentioning the fact as to in which portion of the entire 16.180 cents of property, the above 15 cents has been demarcated and set apart for delivery. I am of the view that the report of the Amin is not helpful to see whether he had delivered the decree

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O.P.(C).No. 416 of 2024

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..3..

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schedule property as directed by this court. So from the available evidence on record, I am of the view that without having specifically mentioned the details of the property delivered to the decree holder and also without having attached sketch of the property identified along with the report of the Amin, the Amin has filed report stating that decree schedule property has been delivered. So in view of the above discussions I am of the view that it cannot be concluded that Amin has validly executed the decree and delivered the property to the decree holder. So in the light of what has been discussed in the preceding paragraphs I find that the report of Amin regarding delivery of the decree schedule property is not in accordance with the directions issued from this court and hence the report of Amin is liable to be set aside.”

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2. This order has been interfered with by the learned Sub Judge vide Ext.P12, directing delivery in tune with Ext.C3(a), which was not accepted vide Ext.P9 order. The same is done on the basis of an application preferred by the decree holder,

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..4..

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O.P.(C).No. 416 of 2024

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after three years from the date of Ext.P9 order. This Court finds that, the vice which has been noted in Ext.P9 to reject Ext.C3 series report, has not been addressed, much less properly addressed, in Ext.P12 order. Instead, delivery is directed to be made in tune with Ext.C3(a), which was frowned upon by the Sub Court, vide Ext.P9.

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3. In the circumstances, Ext.P12 order cannot be sustained. The matter is remitted to the Sub Court, Kochi for afresh consideration of Ext.P10 application.

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4. In view of the fact that unsustainability of the order is writ large in Ext.P12 order, notice to the respondent is dispensed with. It is so done also for the reason that the matter is only directed to be reconsidered, in accordance with law.

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O.P.(C).No. 416 of 2024

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..5..

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The Original Petition is disposed of as above.

Sd/-

C. JAYACHANDRAN

JUDGE

O.P.(C).No. 416 of 2024

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..6..

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APPENDIX OF OP(C) 416/2024

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PETITION Exhibit	ER EXHIBITS P1	TRUE COPY OF THE PLAINT IN O.S. NO. 40/2008 ON THE FILE OF THE SUB COURT KOCHI DATED 05.02.2008
Exhibit	P2	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S.NO.40/2008 ON THE FILE OF THE SUB COURT, KOCHI DATED 09.02.2009
Exhibit	P3	TRUE COPY OF THE AWARD DATED 12.9.2009 IN O.S.NO.40/2008 ON THE FILE OF THE SUB COURT, KOCHI
Exhibit	P4	TRUE COPY OF THE APPLICATION FOR DELIVERY OF THE PROPERTY SUBMITTED BY THE RESPONDENT
Exhibit	P5	TRUE COPY OF THE APPLICATION IN I.A. NO.1549/ 2011 DATED 09.12.2011
Exhibit	P6	TRUE COPY OF THE ORDER DATED 20.3.2013 IN IA NO.1549A011 ON THE FILE OF THE SUB COURT, KOCHI
Exhibit	P7	TRUE COPY OF THE JUDGEMENT DATED 25.9.2015 IN C.R.P. NO. 335/2013
Exhibit	P8	TRUE COPY OF THE COMMISSION REPORT DATED 08.11.2016 IN I.A NO 1549/2011IN O.S NO 40/2008
Exhibit	P8(a)	TRUE COPY OF THE SKETCH IN O.S NO 40/2008
Exhibit	P8(b)	TRUE COPY OF THE SKETCH IN O.S NO 40/2008
Exhibit	P8(c)	TRUE COPY OF THE SKETCH IN O.S NO 40/2008
Exhibit	P9	TRUE COPY OF THE ORDER DATED 8.12.2016 IN IA NO.1549/2011 ON THE FILE OF SUB COURT KOCHI IS
Exhibit	P10	TRUE COPY OF THE APPLICATION (I.A NO.632 / 2019) ON THE FILE OF THE SUB COURT KOCHI SEEKING DELIVERY OF THE DECREE SCHEDULE PROPERTY
Exhibit	P11	TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS IN. I.A. NO.632/2019 DATED 26.10.2021
Exhibit	P12	TRUE COPY OF THE ORDER DATED 23-01-2024 IN IA NO. 632/2019

Sarojini Kunjumon v. Kp. Joseph

Case brief

What is this about?

What did the court decide?

Sarojini Kunjumon v. Kp. Joseph

Case brief

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