IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 CRP.No. 1027 of 2007() ---------------------- CMA.106/2006 of DISTRICT COURT, PALAKKAD OS.127/1996 of SUB COURT, OTTAPPALAM (IA 584/2005) .................... REVN. PETITIONER: APPELLANTS 1, 2 & 4 TO 6/DEFENDANTS 1,2,4,6 & 7 ----------------------------------------------------------------- 1. KRISHNANKUTTY EZHUTHASSAN, AGED 69 YEARS, S/O.VELU EZHUTHASSAN, KACHERIYIL, NAGALASSERY AMSOM, PULAKKATTIRI DESOM, OTTAPALAM TALUK. 2. LAKSHMIKUTTY, AGED 76 YEARS, D/O.VELU EZHUTHASSAN, -DO- -DO- 3. KUNHUKUTTY, AGED 73 YEARS, D/O.VELU EZHUTHASSAN, -DO- -DO- 4. NARAYANAN, AGED 48 YEARS, S/O.VELU EZHUTHASSAN, -DO- -DO- 5. RAMAKRISHNAN, AGED 48 YEARS, S/O.VELU EZHUTHASSAN, -DO- -DO- BY ADV. SRI.SANTHEEP ANKARATH SMT.PRIYA VIJAYAN RESPONDENTS: RESPONDENTS/RESPONDENTS/PLAINTIFF & 5TH DEFENDANT -------------------------------------------------------------- 1. PARUKUTTY, AGED 66 YEARS, W/O.NARAYANAN EZHUTHASSAN AND D/O.RAMAN EZHUTHASSAN, NAGALASSERY AMSOM, PULAKKATTIRI DESOM, OTTAPALAM TALUK. NAGALASSERY (PO), PIN - 679 533. 2. SANKUNNI, AGED 65 YEARS, S/O.VELU EZHUTHASSAN, -DO- -DO- NAGALASSERY (PO), PIN - 679 533. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING ORDER ON IA 2916/07 IN CRP 1027/07 DISMISSED 22.1.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- C.R.P. NO. 1027 OF 2007 --------------------- Dated this the 22nd day of January, 2008 ORDER This revision petition is preferred against the order of the District Judge, Palakkad in CMA 106/06, which confirmed the order of the Subordinate Judge, Ottapalam in IA 584/05 in OS 127/96 of that court. The suit is one for partition. An ex parte decree was passed in partition. Aggrieved by that decision, defendant Nos. 1 to 4 & 6 and 7 filed IA 584/05 for setting aside the ex parte decree making the plaintiff and the 5th defendant as the respondents. In spite of opportunities, no notice was taken to respondent No.2 and it was recorded that no assistance were rendered by the counsel and therefore the application was dismissed for default. It is against that decision, CMA 106/06 was filed. Learned District Judge had elaborately considered the matter unlike the learned Subordinate Judge and thereafter dismissed the appeal. The suit is one for partition and an ex parte decree has been passed. It is true that there has been laches and negligence on the part of the defendant Nos. 1 to 4 & 6 and 7 in properly prosecuting IA 584/05. Learned counsel would submit that it was on account of the non-availability of C.R.P. NO.1027/07 2 address, notice could not be taken and therefore prays for indulgence. I feel that an opportunity can be given to prosecute IA 584/05. Therefore the order under challenge is set aside and I direct the Subordinate Judge, Ottapalam to restore IA 584/05 in O.S. 127/96 to file and give an opportunity to the petitioners therein to take out notice to the 2nd respondent therein by substituted services preferably by paper publication and thereafter dispose of that application on merits. Needless to say that the revision petitioner herein shall not unnecessarily seek time for taking steps hereafter. Revision petitioners and the 1st respondent are directed to appear before the court below on 26.2.08. M.N.KRISHNAN, JUDGE vps C.R.P. NO.1027/07 3