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JOHN DYRIS, S/O.MANUEL v. RAGHUTHAMAN, S/O.APPATTAN - WP(C) No. 32905 of 2006(P)  RD-KL 3042 (11 December 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 32905 of 2006(P)
1. JOHN DYRIS, S/O.MANUEL,
2. ANTONY SANTHOSH, S/O.MANUEL,
1. RAGHUTHAMAN, S/O.APPATTAN,
2. SREENIVASAN, S/O.APPATTAN,
3. GANESAN, S/O.APPATTAN,
4. JANARDHANAN, S/O.APPATTAN,
5. DEVENDRAN, S/O.APPATTAN,
6. ASOKAN, S/O.APPATTAN, JANAKAPARAMBIL,
7. ARUN, S/O.APPATTAN, JANAKAPARAMBIL,
8. ARAVINDAN, S/O.APPATTAN,
9. UMANANTH ALIAS UMAKANTH,
10. RAJESH, S/O.RAGHUTHAMAN,
11. JAYESH, S/O.RAGHUTHAMAN,
12. SREEKUMAR, S/O.SREENIVASAN,
13. PRATHEESH ALIAS PRABESH,
For Petitioner :SRI.K.A.SALIL NARAYANAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR, J.W.P.C.NO.32905 OF 2006 (P)
Dated this the 11th day of December, 2006.
Petitioners are plaintiffs in O.S.543/05 on the file of Sub Court, Ernakulam, a suit for specific performance of the agreement for sale. Petitioners are challenging Ext.P3 order passed by learned Sub Judge in I.A.6585/06, an application to remit the report submitted by the commissioner. Case of petitioner was that defendants have set up an oral partition which is subsequently resiled and when commissioner inspected the property, commissioner found stumps are planted and existence of survey stones indicating the oral partition and petitioner sought to appoint a commissioner to measure the area within that boundaries, but the application was rejected by the trial court holding that the court cannot take cognizance of the oral partition as per law. It was contended that the order is illegal and is to be set aside.
2. Learned counsel appearing for petitioner was heard.
3. Arguments of learned counsel appearing for petitioner was that learned Sub Judge has already decided the case under Ext.P3 order in view of the finding against oral partition and therefore Ext.P3 order is to be set aside. W.P.C.NO.32905 OF 2006 (P) 2
4. On hearing learned counsel appearing for petitioner, I find no reason to interfere with Ext.P3 order in exercise of the extra ordinary jurisdiction of this court under Article 227 of Constitution of India. The order passed by learned Sub Judge refusing to remit report is only an interlocutory order. Learned Munsiff has to dispose the suit untrammeled by the order. If on evidence court finds that a report is necessary the order will not affect the power of the court to appoint a commissioner. Petitioner is also entitled to challenge the order along with this judgment, if necessary. It is made clear that learned Sub Judge has to ignore the observation in Ext.P3 order that court cannot take cognizance of the oral partition. This petition is disposed directing learned Sub Judge to dispose the suit ignoring the said observation and on the evidence to be recorded. M.SASIDHARAN NAMBIAR,
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