O.P.(C) No. 175 of 2017 (Manu Vaidyar vs Parukuttyamma Indira Devi, Krishnan Nadar, and Binu Krishnan)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 9[TH] DAY OF MAY 2023 / 19TH VAISAKHA, 1945 OP(C) NO. 175 OF 2017 ``` ``` AGAINST THE ORDER IN I.A.NO.4256/2016 IN O.S.NO.12/2012 ON THE FILES OF PRINCIPAL MUNSIFF COURT, NEYYATTINKARA ``` ## **`PETITIONER/1ST DEFENDANT:`** ``` MANU VAIDYAR, WRITTEN AS SADAVISAN NAIR, S/O. SIVAN PILLAI, T.C 111/1717, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM,FROM M.S. BUNGLOW, PUNNAKKULAM, KOTTUKAL VILLAGE, NEYYATINKARA TALUK, THRIUVANANTHAPURAM, MANAGING DIRECTOR OF OFISINA BUILDERS AND REALTORS PVT. LTD. BY ADV SMT.INDULEKHA JOSEPH ``` ## **`RESPONDENTS/135TH DEFENDANT/PLAINITIFFS`** ``` 1PARUKUTTYAMMA INDIRA DEVI THENGUNATTAVILA VEEDU, KOTTUKAL DESOM, KOTUKAL VILLAGE, NEYYATINKARA TALUK, THIRUVANANTHAPURAM DISTRICT 695 121. 2KRISHNAN NADAR, S/O.KOCHAPI NADAR, CHRUVILA PUTHEN BUNGLOW, NOW RESIDING AT KRISHNA BHAVAN, CHOWARA, KOTTUKAL VILLAGE, NEYYATINKARA TALUK, THIRUVANANTHAPURAM 695 121. 3BINU KRISHNAN, S/O.KRISHNAN NADAR, CHARUVILA PUTHEN BUNGLOW, NOW RESIDING AT KRISHNA BHAVAN, CHOWARA, KOTTUKAL VILLAGE, NEYYATINKARA TALUK, THIRUVANANTHAPURAM 695 121. BY ADVS. R1 BY SHRI.AJIT G ANJARLEKAR SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN R2 AND R3 BY SRI.JAYAKUMAR SUKUMARAN SRI.LEKSHMI S. KUMAR ``` ``` THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03.01.2023, THE COURT ON 09.05.2023 DELIVERED THE FOLLOWING: ``` ## O.P.(C) No. 175 of 2017 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - O.P.(C) No.175 of 2017 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 09[th] day of May, 2023 ## **JUDGMENT** This Original Petition is filed under Article 227 of the Constitution of India seeking for the following reliefs: - i. Call for the records resulting in Exhibit P12 order, set aside the same and dismiss I.A.No.4256 of 2016 in O.S.No.12 of 2012 on the file of the Principal Munsiff Court, Neyyattinkara or to direct the Principal Munsiff Court, Neyyattinkara to reconsider I.A.No.4256 of 2016 and to pass fresh orders on merits in accordance with law; - ii. Directing the Principal Munsiff Court, Neyyattinkara to dispose of O.S.No.12 of 2012 on the files of it within a time limit stipulated by this Hon’ble Court; - iii. Pass such other orders, interlocutary or otherwise, which are deemed fit and proper in the interest of justice; - iv. allow this Original Petition (Civil) with costs. 2. The order passed by Principal Munsiff Court, Neyyattinkara (for short ‘the court below’) in I.A.No.4256/2016 in O.S.No.12/2012 is under challenge in the Original Petition O.P.(C) No. 175 of 2017 -:3:- on hand. The petitioner is the 1[st] defendant in O.S.No.12/2012 on the files of the court below. 278[th] defendant in the original case is a Company incorporated under the provisions of the Companies Act, 1956. Petitioner is the Managing Director of the 278[th] defendant and is legally competent to represent it. The 1[st] respondent is the 135[th] defendant and respondents 2 and 3 are the plaintiffs in the above suit. 3. The plaint schedule property was mortgaged by the Karanavar of Punnakkulam Tarawad namely Eswara Pillai Krishna Pillai to Padmanabhan Ummini as per Ottikuzhikkanam Deed No.3174 of 1095 ME. The 2[nd] respondent is the grandson of the aforesaid Padmanabhan Ummini and the 3[rd] respondent is the son of the 2[nd] respondent. The plaint schedule property was mortgaged but the Karanavar of the Tarawad was reluctant to take any steps to redeem the mortgage. Thereupon two junior members of the Tarawad namely Chellappan Pillai and Velayudhan Nair moved O.S.No.67/1957 before Principal Munsiff Court, Neyyattinkara against the sole surviving legal heir of the mortgagee namely Kochappi Nadar O.P.(C) No. 175 of 2017 -:4:- for redemption and recovery of possession of the mortgaged property. The suit for mortgage was decreed and execution proceedings were initiated. 4. During the pendency of the execution proceedings the plaintiffs in the suit sold their right over the property under the decree to the petitioner as per Sale Deed Nos.2840/1997 and 2861/1997. The petitioner got himself impleaded in the suit as additional decree holder and prosecuted the execution petition. The 2[nd] respondent is the judgment debtor in O.S.No.67/1957. The 3[rd] respondent obtained Sale Deed Nos.989/1998 and 990/1998 with respect to alleged common jenmom right over 74 cents of property out of the mortgaged property. During the pendency of the execution proceedings, documents were executed by the 3[rd] respondent with respect to a portion of the aforesaid 74 cents in favour of the judgment debtors. 5. On the strength of the aforesaid documents executed by the 3[rd] respondent, the judgment debtors filed petitions before the execution court contending inter alia that O.P.(C) No. 175 of 2017 -:5:- there is a pro-tanto merger of the rights of the mortgagors as well as the mortgagees and that symbolic possession alone can be granted in the execution petition. The petitions were dismissed by the execution court and the matter came up before this Court in C.R.P.Nos.404/12, 466/12, 468/12, 478/12 and WP(C) No.28525/10. By a common order passed on 10.12.2010, this Court dismissed all the CRP’s and allowed the Writ Petition on entering a categoric finding that the properties covered by Sale Deed Nos.989/1998 and 990/1998 are not the mortgaged property. The said order was challenged before the Apex Court and was confirmed. 6. Pursuant to the order passed as above, the petitioner redeemed the mortgage by depositing the mortgage money of Rs.295/- and Rs.35,42,973/- (Thirty five lakh forty two thousand nine hundred and seventy three only) towards value of improvements and reduced the property into his possession. This Court in the judgment passed held that Sale Deed Nos.989/1998 and 990/1998 are not with respect to the mortgaged property. But, out of personal vendetta, O.P.(C) No. 175 of 2017 -:6:- respondents 2 and 3 on the strength of the above mentioned Sale Deeds, filed O.S.No.12/2012 before the court below seeking for partition and separate possession of the mortgaged property/plaint schedule property. 7. In O.S.No.12/2012 respondents 2 and 3 had made available a commission report and sketch depicting the physical status of the plaint schedule property including inventory of trees standing therein. Thereafter respondents 2 and 3 filed I.A.No.513/2012 in Ext.P2 suit seeking for an order of ad-interim injunction restraining the petitioner from constructing buildings in the plaint schedule property, from executing documents with respect to plaint schedule property, and from committing waste therein. The said application was partly allowed by the court below vide order dated 13.04.2012 and thereby the relief not to commit waste in the plaint schedule property alone was allowed and denied the reliefs of injunction against construction and alienation. The said order was challenged by the petitioner before Subordinate Judge’s Court, Neyyattinkara by filing C.M.A.No.27/2012. C.M.A was O.P.(C) No. 175 of 2017 -:7:- allowed by the court vide order passed on 11.07.2014. I.A.No.513/2012 filed by respondents 2 and 3 seeking for an order of injunction against the petitioner was dismissed. The above order was challenged by respondents 2 and 3 before this Court in O.P (C) No.2104/2014. Vide judgment passed on 03.02.2015, this Court dismissed the Original Petition and thereby the order was upheld. 8. In the meanwhile, the 1[st] respondent at the instance and expense of respondents 2 and 3 filed I.A.No.4602/2013 seeking reliefs identical to those sought in I.A.No.513/2012. The 1[st] respondent also filed I.A.No.4601/2013 seeking appointment of Receiver over the plaint schedule property. Eventhough the above applications were filed much earlier on 19.08.2013, the petitioners therein did not press the same till the passing of a judgment by this Court in O.P(C) No.2104/2014. After passing of the judgment mentioned above, the petitioner for and on behalf of the 278[th] defendant axed trees standing within the plaint schedule property with a view to make constructions in it. Respondents 2 and 3 being O.P.(C) No. 175 of 2017 -:8:- the judgment debtors in O.S.No.67/1957 had an axe to grind with the petitioner for the reason that he had evicted them from the mortgaged property while executing the decree. Respondents 2 and 3 then filed O.S.No.12/2012 and made every endeavor to prevent the petitioner and his transferee from enjoying the property. 9. Subsequent to the judgment passed in O.P (C) No.2104/2014, on 26.09.2016 the 1[st] respondent at the instance and expense of respondents 2 and 3 filed I.A No.4256/20169 seeking for appointment of an Advocate Commissioner to ascertain the details about the waste allegedly committed by the petitioner. On 04.10.2016 the petitioner and 278[th] defendant filed objection to the above application. On 09.11.2016, the petitioner and the 278[th] defendant filed additional objection to the application. The said application was allowed by the court below vide order passed on 09.11.2016, which is now under challenge in the Original Petition. True copy of the order is appended to the petition on hand as Ext.P12. O.P.(C) No. 175 of 2017 -:9:- 10. It is contended by Smt.Indulekha Joseph, the learned counsel for the petitioner that Ext.P12 is illegal, arbitrary, perverse and capricious. According to the learned counsel, the court below is erred in passing the impugned order. According to her, this Court while passing the common judgment in C.R.P.Nos.404/2010 and connected matters declared that the documents relied on by respondents 2 and 3 are not with respect to the mortgaged property/plaint schedule property. Respondents 2 and 3 had filed O.S.No.12/2012 and thereby made every endeavor to prevent the petitioner and his transferree from enjoying the property. According to him, the court below has held in the case: “The assignment deeds in favour of Binukrishnan, petitioner in CRP No.404 of 2010 did not relate to the mortgaged property.” 11. According to the learned counsel, the court below overlooked the aforesaid finding in the judgment. It is further contended that as revealed from the facts and circumstances of the case and description of the sequences of events, it is O.P.(C) No. 175 of 2017 -:10:- manifestly clear that the 1[st] respondent alongwith his companions are contesting the suit at the instance and expense of respondents 2 and 3 so as to pursue their ulterior object of prolonging this _lis ad-infinitum_ and to scuttle the judgments passed respectively by the Subordinate Judge’s Court, Neyyattinkara and this Court. According to the learned counsel, the commission application is filed by the 1[st] respondent with the oblique motive to prolong the litigation unnecessarily and thereby to vex and harass the petitioner and the transferee under him. The court below erred in understanding and appreciating the factum that a commission report narrating all the details and particulars of the pliant schedule property as on the date of filing of the suit is already on record and therefore a fresh report and plan are unnecessary. 12. Admittedly of the petitioner, trees were cut and removed from the plaint schedule property so as to make constructions therein and therefore an attempt to have an advocate commissioner appointed to ascertain the same is in O.P.(C) No. 175 of 2017 -:11:- the view of the learned counsel purely a vain and futile exercise. The court below has gone wrong in holding that the petitioner is bound to preserve _status quo_ in the back drop of the law laid down by this Court in **Vasudevan Nair vs. Muraleedharan** [ILR 2011 (2) KER 269]. The finding undoubtedly is perverse, illegal and infirm. According to the learned counsel, the matters sought to be ascertained by the Advocate Commissioner are irrelevant, since the final decree is passed and the applications are not liable to be entertained and allowed at this juncture. According to the learned counsel, the _mala fide_ intention and collusion underlying the facts of the case were not perceived by the court below. The 1[st] respondent is contesting the suit at the instance and expense of respondent Nos.2 and 3 and their attempt is to pursue their ulterior object of prolonging the case _ad-infinitum_ and to scuttle the judgment passed by Subordinate Judge’s Court, Neyyattinkara. Thus, according to the learned counsel, the court below has passed the impugned order without adverting to the relevant aspects of the case. O.P.(C) No. 175 of 2017 -:12:- 13. Sri.Govind Padmanabhan and Sri.Jayakumar the learned counsel representing respondent No.1 and respondent Nos.2 and 3 respectively were heard elaborately. According to them the impugned order does not suffer from any illegality, impropriety and infirmity and is not liable to be set aside. According to them the right of the respondents in the plaint schedule property can only be ascertained in a partition suit. 14. The case on hand has got a chequered history since 1957. The Original Suit was one seeking for a decree of mortgage and was filed as O.S.No.67/1957 before Additional Munsiff Court-II, Neyyattinkara. Several proceedings were initiated to execute the decree passed in favour of the petitioner. 15. It is contended by the petitioners in CRP Nos.404/12, 466/12, 468/12 and 478/12 that they have acquired undivided right of decree holder No.2, the co-mortgagor and therefore there is fusion of right of the mortgagor and the mortgagee in them and for the reason they are not liable to be physically evicted from the suit O.P.(C) No. 175 of 2017 -:13:- property. It was held that when the right and interest of some of the decree holders is acquired by some of the judgment debtors that will not prevent the remaining decree holders to execute the decree and in such cases judgment debtors who have acquired the right and interest of some of the decree holders must yield up their possession and then sue for partition and such other reliefs, as the case may be. The court further observed that in a case where interest of the co-parceners is undefined, indeterminate and cannot specifically be stated to be in respect of any one portion of the property, the decree could not be given effect to before ascertaining rights of the parties by an appropriate decree passed in a partition suit. Therefore, the court below permitted the execution of the decree despite the factum that shares of some of the co-mortgagors have been purchased by 3[rd] parties. The court below also held that their undivided interest in the plaint schedule property could only be settled in a suit seeking partition. O.S.No.12/2012 is a suit for partition filed by one of the assignees of the property from a co-mortgagor. O.P.(C) No. 175 of 2017 -:14:- Though it is contended by the learned counsel that since a commission report is already produced in O.S.No.12/2012, there is no need for deputing an Advocate Commissioner again for ascertaining matters identical to those already reported. 16. This Court has read the points sought to be identified by the second commission application, in which the impugned order was passed. This Court has also gone through the order deputing an Advocate Commissioner in the suit originally and found that the points now sought to be reported are not identical. In a partition suit it is very much relevant to have an Advocate Commissioner deputed to furnish evidence to the court trying the suit. The court below has allowed the application filed by defendant No.135. In order to partition the property by _metes and bounds_ , the valuables in the property are also required to be ascertained. The value of the improvements is relevant in the case on hand and if any of the improvements are removed from any corner, that factum also needs to be ascertained. The changes must also be brought on record, so as to have a fair trial and proper decision making O.P.(C) No. 175 of 2017 -:15:- in the suit. The court below has correctly observed so and passed the impugned order. The challenge against the impugned order will not sustain for the reasons. 17. In the result, O.P(C) is dismissed and the impugned order is maintained. Since the suit for partition is filed in the year 2012 and the Original Petition on hand challenging the impugned order has been pending consideration of this Court since 2017, a direction is issued to Principal Munsiff Court, Neyyattinkara to expedite the filing of the commission report by the advocate commissioner appointed through the impugned order and all further proceedings in the suit so as to facilitate the disposal of the suit at the earliest. At any rate, the Original Suit pending on its file as O.S.No.12/2012 shall be disposed of by the court below within a period of six months from the date on which a certified copy of this judgment is received. Sd/- **MARY JOSEPH, JUDGE.** NAB 03.01.2023 ## O.P.(C) No. 175 of 2017 ## -:16:- ## **`APPENDIX OF OP(C) 175/2017`** |`PETITIONER’S`|`EXHIBITS:`| |---|---| |`EXHIBIT P1`|`TRUE COPY OF THE ORDER PASSED BY THE`| ||`HON’BLE HIGH COURT OF KERALA IN CRP`| ||`NO.404/2010 DATED 10/12/2010`| |`EXHIBIT P2`|`TRUE COPY OF THE PLAINT IN O.S`| ||`NO.12/2012 ON THE FILE OF THE`| ||`PRINCIPAL MUNSIFF COURT, NEYYATINKARA`| |`EXHIBIT P3`|`TRUE COPY OF THE COMMISSION REPORT AND`| ||`SKETCH DATED 09/09/2015 FILED BY`| ||`ADVOCATE COMMISSIONER A. RADHAKRISHNAN`| ||`IN O.S 12/2012 ON THE FILES OF THE`| ||`PRINCIPAL MUNSIFF COURT, NEYYATINKARA.`| |`EXHIBIT P4`|`TRUE COPY OF THE ORDER DATED`| ||`13/04/2012 PASSED BY THE PRINCIPAL`| ||`MUNSIFF COURT, NEYYATINKARA IN I.A`| ||`513/2012 IN O.S 12/2012`| |`EXHIBIT P5`|`TRUE COPY OF THE JUDGMENT OF THE`| ||`SUBORDINATE JUDGE'S COURT,`| ||`NEYYATINKARA IN C.M.A 27/2012 DATED`| ||`11/07/2014`| |`EXHIBIT P6`|`TRUE COPY OF THE JUDGMENT OF THE`| ||`HON’BLE HIGH COURT OF KERALAIN O.P(C)`| ||`2104/2014 DATED 03/02/2015`| |`EXHIBIT P7`|`TRUE COPY OF I.A NO.4602/2013 IN`| ||`OS.NO.12/2012 ON THE FILE OF THE`| ||`PRINCIPAL MUNSIFF COURT, NEYYATINKARA`| |`EXHIBIT P8`|`TRUE COPY OF I.A. NO.4601/2013 IN O.S`| ||`NO.12/2012 ON THE FILES OF THE`| ||`PRINCIPAL MUNSIFF COURT, NEYYATINKARA`| |`EXHIBIT P9`|`TRUE COPY OF THE I.A.NO.4256/2016 IN`| ||`O.S NO.12/2012 ON THE FILE OF THE`| ||`PRINCIPAL MUNSIFF COURT, NEYYATINKARA`| |`EXHIBIT P10`|`TRUE COPY OF THE OBJECTION FILED BY`| ||`THE IST DEFENDANT AND 278TH DEFENDANT`| ||`ON 04/10/2016 TO I.A.NO.4256/2016 IN`| ||`O.S 12/2012 ON THE FILE OF THE`| ||`PRINCPAL MUNSIFF COURT, NEYYATINKARA`| ## O.P.(C) No. 175 of 2017 ## -:17:- ``` EXHIBIT P11TRUE COPY OF THE ADDITIONAL OBJECTION IN I.A 4256/2016 IN O.S 12/2012 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, NEYYATINKARA DATED 09/11/2016 EXHIBIT P12TRUE COPY OF THE ORDER IN I.A 4256/20165 IN O.S 12/2012 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, NEYYATINKARA DATED 09/11/2016 ``` ``` RESPONDENTS’ EXHIBITS: NIL ``` ``` //TRUE COPY// P A TO JUDGE ```