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PAUL, S/O.CHITTILAPPILLY OUSEPH versus KURIAN, CHITTILAPPAILLY

High Court of Kerala

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PAUL, S/O.CHITTILAPPILLY OUSEPH v. KURIAN, CHITTILAPPAILLY - WP(C) No. 643 of 2007(B) [2007] RD-KL 404 (5 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 643 of 2007(B)

1. PAUL, S/O.CHITTILAPPILLY OUSEPH,
... Petitioner

Vs

1. KURIAN, CHITTILAPPAILLY,
... Respondent

For Petitioner :SRI.BABU CHERUKARA

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :05/01/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... W.P.(C)No.643 OF 2007 ............................................

DATED THIS THE 5TH DAY OF JANUARY, 2007



JUDGMENT

Petitioner is first plaintiff in O.S.1100 of 1997 on the file of Munsiff Court, Thrissur. Petitioner filed I.A.3298 of 2006, an application under Order Order XXVI Rule 10 of Code of Civil Procedure to set aside the report submitted by Commissioner. Under Ext.P7 order, learned Munsiff dismissed the application. It is challenged in this petition filed under Article 227 of Constitution of India.

2. Learned counsel appearing for petitioner was heard. The argument of learned counsel appearing for petitioner was that learned Munsiff should have directed the Commissioner to fix the property with reference to the side measurements and to fix the extent on the basis of side measurements and the dismissal of Ext.P7 order is therefore to be quashed.

3. As held by this court in A.Narayani @ Kittan V. Krishnan(1996(2) KLJ 489), an order passed by the trial court refusing to set aside the report submitted by the Commissioner or dismissing an application for WP(C)643/2007 2 remitting the report back to the Commissioner cannot be interfered in exercise of the extra ordinary jurisdiction of this court under Article 227 of Constitution of India. The trial court is best equipped to decide the matter. It is an order in a interlocutory application. If aggrieved and the suit is decided against petitioner, he is at liberty to challenge the order, along with final judgment. Petitioner is also entitled to adduce evidence in support of his objection raised in I.A.3298 of 2006 and to cross examine the Commissioner, if so advised. Writ petition is dismissed.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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