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GOPALA MENON, AGED 89 v. KOMARATHUTHARAVADU VAKA PALLISSERY - WP(C) No. 29430 of 2006(C)  RD-KL 937 (12 January 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 29430 of 2006(C)
1. GOPALA MENON, AGED 89,
1. KOMARATHUTHARAVADU VAKA PALLISSERY
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.T.K.CHINNAN
O R D E R
M.SASIDHARAN NAMBIAR, J............................................ W.P.(C)No.29430 OF 2006 ............................................
DATED THIS THE 12th DAY OF JANUARY, 2007
Petitioner is 8th defendant in O.S.1259 of 2003 on the file of Munsiff, Thrissur. Respondents are plaintiffs. A decree was granted in favour of respondents. Defendants filed A.S.297 of 2006 before District Court, Thrissur challenging the decree and judgment. An application under Order XLI Rule 5(2) to stay execution of the decree was sought for and granted by the appellate court on 30.10.2006. First respondent filed I.A.2858 of 2006, an application for appointment of Commission. Under Ext.P4, learned District Judge allowed the application. It is challenged in this petition filed under Article 227 of Constitution of India.
2. Learned counsel appearing for petitioner and respondents were heard. The argument of learned counsel appearing for petitioner is that learned District Judge did not allow the defendants/appellants to file an objection to the commission application and without affording an opportunity and without considering the WP(C) 29430/2006 2 necessity of appointment of a Commission, a Commissioner was appointed and therefore Ext.P4 order is to be quashed. Learned counsel appearing for the respondents vehemently argued that learned District Judge has exercised the discretion vested in him and appointed a Commission and even if the reasons are not elaborately stated in Ext.P4 order, in exercise of the extra ordinary jurisdiction of this court under Article 227, the order cannot be challenged.
3. On hearing learned counsel appearing for petitioner and respondents, it is clear that Ext.P4 order was passed by learned District Judge without following the facts and the law. I cannot accept the argument of learned counsel appearing for respondents that this court cannot interfere with Ext.P4 order in exercise of the supervisory powers of this court, for the reason that appellate court has all the powers of the trial court and can appoint a Commission. The report to be submitted by the Commissioner can only be on evidence and that evidence can be received by the appellate court only on satisfying the conditions provided under Rule 27 of Order XLI. The order does not WP(C) 29430/2006 3 show that this aspect was even considered by the learned District Judge. Therefore Ext.P4 order is quashed. Learned District Judge is directed to dispose I.A.2858 of 2006 afresh after hearing the counsel appearing for both parties and affording opportunity to the appellants to file objection to I.A.2858 of 2006. Appellants are entitled to file objection to I.A.2858 of 2006 within two weeks from today. If such an objection is filed, learned District Judge to hear the parties and pass appropriate orders. If the court finds that conditions provided under Rule 27 of Order XLI are satisfied and report is warranted and necessary, the Commissioner who has carried out part of the work may be appointed as it is represented that Commissioner has already inspected the property and part of the work was completed.
M.SASIDHARAN NAMBIAR, JUDGElgk/-
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