Kerala High Court
K.P.Damodaran Nair vs K.P.Madhavan Nair on 16 December, 2009
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36350 of 2009(O)
1. K.P.DAMODARAN NAIR, S/O. A.KUNHAMBU NAIR
... Petitioner
2. K.P.M. MALINGU NAIR,S/O. A.KUNHAMBU NAIR
3. K.P.USHA, W/O.SREEKUMAR, BALASHREE,
4. K.P.ASHWATHI, D/O. LAHITHAKSHA NAMBIAR,
5. PARVATHI, D/O. M.S.SREEKUMAR, NEAR
6. K.P.MOHANAN NAIR, S/O. KRISHNAN NAIR,
7. K.P.DAKSHAYANI AMMA,
8. K.P.REEJAMOL, D/O. RATNAKARAN NAIR,
9. K.P.REENA MOL, D/O. RATNAKARAN NAIR,
10. K.P.KARTHYAYINI AMMA,
11. K.P.GOPINATHAN NAIR, S/O.KUNHAMBU NAIR,
12. ASHAKUMARI, W/O. NARAYANAN NAIR,
13. K.P.PURUSHOTHAMAN, S/O. KUNHAMBU NAIR,
14. K.P.MURALIDHARAN NAIR,
15. K.P.VANAJA, W/O. CHANDRAN, NANDANAM,
16. K.P.GNGADHARAN NAIR, S/O. KUNHAMBU NAIR,
17. K.P.KUNHAMBU NAIR, S/O. A. KUNHAMBU NAIR
18. K.P.RADHA, W/O. LHITHAKSHAN NAMBIAR,
19. K.P.RAGESH KUMAR, S/O. RATNAKARAN NAIR,
20. K.P.JNAKI AMMA, W/O. KRISHNAN NAIR,
Vs
1. K.P.MADHAVAN NAIR, S/O. A. KUNHAMBU NAIR
... Respondent
2. K.P.NARAYANAN NAIR, S/O. KANNAN NAIR
For Petitioner :SRI.K.JAJU BABU
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :16/12/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.36350 OF 2009 (O)
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Dated this the 16th day of December, 2009
J U D G M E N T
The writ petition is filed seeking mainly the following reliefs:
i. to call for the records leading to the case and set aside the orders of the Court below in E.P.No.78/2009 dated 5.12.2009 and E.A.No.197/2009 dated 5.12.2009 in R.I.A.No.226/1947 in O.S.No.22/1939 as evidenced by Exts.P1 and P7.
ii. to direct the Sub Court, Kasaragod to allow Ext.P2 application in E.A.No.197/2009 in E.P.No.78/2009 in R.I.A.No.226/1947 in O.S.No.22/1939.
iii. to direct the Sub Court, Kasaragod to consider Ext.P1 execution petition afresh on merits after allowing Ext.P2 application.
2. Petitioners challenge Ext.P7 order passed by the learned Sub Judge, Kasaragod dismissing the application WPC.36350/09 2 moved for impleading themselves as additional respondents in E.P.No.78 of 2009 in R.I.A.No.226 of 1947 in O.S.No.22 of 1939 on the file of the Sub Court, Kasaragod. The petitioners claim to be members of a 'Thavazhi' in which the 1st respondent is presently the senior most member. On the basis of a scheme settled in O.S.No.22 of 1939, the administration over the management of a Kottaram with appurtenant lands, Kalari and Deity with movables is vested with the senior most member of one among the three thavazhies in the tharavad for a term of three years. After the expiry of the term, such management has to be passed over to the senior most member in the other thavazhi in turn. Though the decree passed in the above suit settling the scheme following the above arrangement has not been produced with the writ petition, from the submissions made, it is seen that by practice, transfer of management and possession is taken over through court moving an application as an execution petition in advance before the term of one thavazhi is over. Accordingly, the 1st respondent who happens to be the senior most member of the thavazhi, which is having the next turn of management, WPC.36350/09 3 filed E.P.No.78 of 2009 for transfer of the management and possession of the properties. It is in that execution petition, the petitioners, some of the members of the thavazhi, moved the application to get themselves impleaded alleging that the 1st respondent is unfit to take over the management and it should be entrusted to another member in the thavazhi. That application was dismissed by the learned Sub Judge vide Ext.P7 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.
3. I heard the learned counsel for the petitioners. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and, hence, it is dispensed with. Indisputably, the scheme settled in a suit provide for management of some properties of the tharawad, a Kottaram, Kalari, Deity with movables etc. by its three thavazhies, in turn, for a period of three years, with the senior most WPC.36350/09 4 members of the thavazhi assuming such management and administering the properties during the term fixed as and when its turn is due. Conventionally, as a matter of course, handing over and taking of charge in terms of the scheme framed by the court as per the decree passed in the suit, it appears, the senior most member of the thavazhi, when its turn for administration is due, file an application before the execution court and it is given effect to by the orders of the court. Does that practice enable any of the interested parties, members of the thavazhi, to approach the execution court to challenge the competency of the 1st respondent a senior most member of that Thavazhi from assuming charge in accordance with the scheme when the turn of that thavazhi comes for administration of the properties is the question emerging for consideration. If at all the petitioners have got any grievance as to the incompetency of the 1st respondent to take over charge for any reason whatsoever, or any modification of the scheme is warranted, they have to take appropriate steps before the proper forum in accordance with law. Once a scheme is settled in a suit, specifying the terms, it is outside WPC.36350/09 5 the purview of the execution court to examine such questions raised by the interested parties as canvassed in the present case over matters which require adjudication of disputed facts. Any enquiry on such question is permissible only if the scheme provides such empowerment of adjudication by the court. Petitioners have no case that in the decree settling the scheme any provision has been made enabling the execution court to determine the questions raised by them as to the incompetency of the 1st respondent to assume charge over the administration over the properties, in accordance with the terms of the scheme when the turn comes, as its senior most member. Copies of the decree and judgment passed in the suit settling the scheme have also not been produced in the writ petition to enable this court to examine whether the application moved by the present petitioners before the execution court is entertainable or not. Prima facie, the petitioners have not canvassed a case showing the authority of the execution court to examine the questions raised by them as per the provisions of the scheme, and when that be so, it is reasonable to assume that no such provision is covered by the WPC.36350/09 6 scheme. I do not find any merit in the writ petition challenging Ext.P7 order, and it is dismissed.
S.S.SATHEESACHANDRAN JUDGE prp