IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WP(C).No. 5604 of 2009(O) ------------------------------------- OS.NO.1886/2004 OF PRL.MUNSIFF'S COURT, ERNAKULAM. .................... PETITIONER/IST DEFENDANT IN THE SUIT: -------------------------------------------------------------- K.D.JUSTINE, AGED 45, S/O.DEVASSY, KOLATHARA HOUSE,MARKET ROAD, VADUTHALA,KOCHI-23. BY ADVS. MR.K.V.SADANANDA PRABHU, MR.P.VIJAYARAGHAVAN. RESPONDENTS/ PLAINTIFF AND DEFENDANT 2 & 3 IN THE SUIT: --------------------------------------------------------------------------------------------- 1. K.D.ANTONY, AGED 64, S/O.DEVASSY, KALATHARA HOUSE, VADUTHALA CHERANALLUR VILLAGE. 2. SMT K.D.LILA, AGED 52, W/O.JOY THOTTUNGAL THARA, NEAR RAILWAY QUARTERS, NETTOOR.P.O(VIA MARADU). 3. K.D.MABLE, AGED 58,W/O.DEVASSY MALIAKKAL HOUSE, NEAR CHURCH, THAIKKODAM. R1 BY ADVS. MR.P.N.RAMAKRISHNAN NAIR, MR.P.VISWANATHAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.5604 of 2009 - O --------------------------------- Dated this the 11th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To call for the records relating to Ext.P1 and issue a writ in the nature of certiorari or other writ order or direction quashing the orders on I.A.No.9715/08 by further declaring the same as non existent in the eye of law in view of Ext.P1 application. ii) To order that the I.A.No.334/09 (Ext.P1) is liable to be proceeded with under Section 3(1) of the Partition Act 4 of 1893.” 2. Petitioner is one among the respondents in a final decree proceedings arising from a suit for partition. He has been allotted 1/8th share in the suit property under the preliminary decree. He has moved an application under Section 3(1) of the Partition Act, during the pendency of the final decree proceedings, for purchasing the shares of other sharers on the valuation, to be fixed by the court. The court below rejected his W.P.(C).No.5604 of 2009 - O 2 application and then fixing the value of the property at the rate of Rs.2 Lakhs per cent ordered for sale of the properties in between the shareholders, fixing the date, time and place for such rate. Questioning the correctness that order he has filed this writ petition invoking the supervisory jurisdiction of this Court under Article 226 of the Constitution of India. 3. I heard the counsel on both sides. 4. Having regard to the submissions made and also taking note of the provisions covered by Partition Act, I find the petitioner has an alternate efficacious remedy by way of an appeal under Section 8 of the Act to question the correctness of the impugned order. So much so, the present writ petition filed to challenge that order, is not entertainable. 5. The writ petition is dismissed without prejudice to the right of the petitioner to prefer an appeal against the impugned order under Section 8 of the Partition Act, if so advised. If any such appeal is filed by the petitioner the appellate court concerned shall take note of the period taken by the petitioner W.P.(C).No.5604 of 2009 - O 3 for prosecuting this writ petition before this Court and appropriate orders condoning such period under Section 14 of the Limitation Act, shall be extended to the petitioner. Sale ordered by the court shall be kept in abeyance for a period of one month to enable the petitioner to prefer an appeal, if so desired. S.S.SATHEESACHANDRAN, JUDGE. bkn/-