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High Court of KeralaOP(C)/2227/2015disposed of

Dharmendra D.Vora v. Rameshchanra Jeevarj Vora

2015-12-02Honourable Mr. Justice K.Abraham Mathew5 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW WEDNESDAY, THE 2ND DAY OF DECEMBER 2015/11TH AGRAHAYANA, 1937 -------------------------------------- OS 88/2002 OF PRINCIPAL SUB COURT, KOCHI --------------------- PETITIONER(S):

---------------------- 1.

DHARMENDRA D.VORA, AGED 48 YEARS, S/O.DHIRAJLAL VORA, C.C.5/698, GUJARATHI ROAD, MATTANCHERY, KOCHI-682002.

2.

HEMANSU D VORA, S/O.DHIRAJLAL VORA, C.C.5/698, GUJARATHI ROAD, MATTANCHERY, KOCHI-682002.

BY ADVS.SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.V.S.SHIRAZ BAVA SRI.JOSEPH KURIAN VALLAMATTAM SRI.K.H.ANSAR RESPONDENT(S):

------------------------- 1.

RAMESHCHANDRA JEEVARJ VORA, S/O.JIVRAJ VORA, NEW ROAD, KOCHI-2.

2.

SUNIL D.VORA, S/O.DHIRAJLAL VORA, C.C.5/698, GUJARATHI ROAD, MATTANCHERY, KOCHI-682002.

3.

DARSANA MITESH SHAH, D/O.DHIRAJLAL VORA, RESIDING AT D46, BCC SPRING FIELD APARTMENT, 8 EVK SAMPAT ROAD, VEPRI, CHENNAI-600007.

R1 BY ADVS. SRI.K.N.SIVASANKARAN SRI.SUNIL SHANKER SMT.ARCHANA S. KUMAR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1 TRUE COPY OF THE JUDGMENT DATED 26/2/2004 IN O.S.88/2002 OF THE ADDITIONAL SUB JUDGE,KOCHI P1(A) TRUE COPY OF THE PRELIMINARY DECREE DATED 26/2/2004 IN O.S.88/2002 P2 TRUE COPY OF THE FINAL DECREE APPLICATION NO.IA.1527/11 IN O.S.88/2002 P3 TRUE COPY OF THE COMMISSION REPORT FILED ON 22.05.13 ALONG WITH THE VALUATION REPORT AND SKETCH OF THE VILLAGE OFFICER IN I.A.1527/11 IN O.S.88/2002 P4 TRUE COPY OF THE COMMISSION REPORT DATED 1.7.14 IN I.A.1527/11 IN O.S.88/2002 P5 TRUE COPY OF THE PRINT OUT OF THE PROCEEDING DATED 5/8/14 IN FDA.1527/11 P5(A) TRUE COPY OF THE PRINT OUT OF THE PROCEEDING DATED 8/10/14 IN FDA.1527/11 P5(B) TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS DATED 6/11/14 IN FDA.

1527/11 P5(C) TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS DATED 12/12/14 IN FDA.1527/11 P5(D) TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS DATED 19/12/14 IN FDA.1527/11 P6 TRUE COPY OF THE COMMON ORDER DATED 21/3/2015 OF THE HON'BLE SUBORDINATE JUDGE,KOCHI P7 TRUE COPY OF THE ORDER DATED 21.03.2015 IN I.A.226/15 IN O.S.88/2002 P8 TRUE COPY OF THE JUDGMENT IN O.P.(C)1317/15 DATED 29/6/2015 OF THIS HON'BLE COURT P9 TRUE COPY OF THE COMMISSION REPORT DATED 27/7/2015 I.A.1527/12 IN O.S.88/2002 P10 TRUE COPY OF THE ORDER DATED 28/7/2015 IN I.A.1527/12 IN O.S.88/2002 P11 TRUE COPY OF THE APPLICATION I.A.801/15 DATED 17-8-2015 UNDER S.3(1) OF THE PARTITION ACT IN I.A.1527/12 IN O.S.88/2002 P12 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 19-8-2015 IN EXT.P11 ....

..2..

------------------------------------- P13 TRUE COPY OF THE COMMON JUDGMENT DATED 22/8/2015 IN I.A.801/15 AND 802/15 DATED 22/8/15.

RESPONDENT(S)' EXHIBITS --------------------------------------- NIL.

/ TRUE COPY / P.S. TO JUDGE

K. ABRAHAM MATHEW, J.

- - - - - - - - - - - - - - - - - - - - - - - O.P.(C)No.2227 of 2015 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2015

J U D G M E N T

Petitioners and the second and third respondents are respondents in IA.1527 of 2011 filed to pass a final decree in OS.88 of 2002 of Additional Sub Judge, Kochi. The suit is for partition. The commissioner appointed by the court reported that physical division of the property is not possible. No party was to ready to purchase the share of the others. The court ordered sale of the property by public auction. The petitioners filed IA.226 of 2015 for a division amongst themselves of the sharers allotted jointly to them and respondents 3 and 4. By Ext.P7 order the learned Sub Judge dismissed it. This was confirmed by Ext.P8 of this court in OS.1317 of 2015. After the matter went back to the trial court the petitioners filed IA.801 of 2015 to order sale of the property among the sharers instead of sale by public auction and IA.802 of 2015 to stay the other proceedings in the final decree application till the disposal of IA.801 of 2015. By Ext.P13 common order the learned Sub Judge has dismissed those applications. This is

O.P.(C)No.2227 of 2015 challenged.

2.

Heard.

3.

There is no dispute that the property cannot be divided physically among the sharers. No co-owner was not ready to purchase the shares of the others. That is why the court ordered sale in public auction. The court has fixed Rs.1,65,00,000/- (Rupees One crore sixty five lakhs only) as the upset price. Now the petitioners submit that they are ready to purchase the property at that price. This cannot be allowed. That is only upset price. The petitioners are free to take part in the public auction. I do not find anything wrong in the order passed by the learned Sub Judge.

4.

Learned counsel for the petitioners submits that the share of the petitioners and the respondents 3 and 4 may be divided amongst themselves. That can be done after the sale.

In the result this OP is disposed of with the above observation.

sd/- K. ABRAHAM MATHEW JUDGE R.AV