IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 SA.No. 401 of 1994() -------------------- AS.320/1987 of III ADDL.DISTRICT COURT,TRIVANDRUM OS.669/1986 of PRL.M.C.,TRIVANDRUM .................... APPELLANT: 2ND RESPONDENT:2ND DEFENDANT: ---------------------------------------------------------------------------- K. SOMASEKHARAN NADAR, RESIDING AT MINI BHAVAN, KOLAM KONAM, PAPPANAMCODE, TRIVANDRUM. BY ADV. SRI.C.E.UNNIKRISHNAN RESPONDENTS: APPELLANTS:PLAINTIFFS: ----------------------------------------------------------------- 1. NARAYANA KURUP, RESIDING AT JAYASREE NILAYAM, MUKULAM, PAPPANAMCODE, NEMOM VILLAGE, TRIVANDRUM. 2. S.NARAYANAN NAIR, RESIDING AT PALAVILA LAKSHMIVILAS, MUKULAM, PAPPANAMCODE, NEMOM VILLAGE, TRIVANDRUM. RESPONDENT:1ST RESPONDENT:1ST DEFENDANT: 3. NEMOM PANCHAYATH, REPRESENTED BY ITS EXECUTIVE OFFICER. ( BY ADV. SRI.G.S.REGHUNATH R1 & R2 ( SRI.R.S.KALKURA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ..2/- ...2..... S.A.NO.401/1994 J U D G M E N T Appellant called. Absent. No representation. Appeal is dismissed for default. 8/01/2008 Sd/- M.Sasidharan Nambiar,Judge Order on C.M.P.No.763/1994 in S.A.No.401/1994 Dismissed 8/01/2008 Sd/- M.Sasidharan Nambiar, Judge /True Copy/ P.A.to Judge Kss M. SASIDHARAN NAMBIAR, J. ================================ S.A. NO. 401 OF 1994 ================================== Dated this the 19th day of February 2008 JUDGMENT Learned counsel appearing for appellant submitted that as appellant did not give any instruction, he has sent a registered letter to the appellant and in spite of that letter, appellant did not turn up and therefore, he has no instruction. Appellant called absent. Appeal is dismissed for default. Sd/- M. SASIDHARAN NAMBIAR, JUDGE ks. True copy P.S.TO JUDGE SASIDHARAN NAMBIR,J. S.A.NO. 401 OF 1994 JUDGMENT 19-2-2008 The 8th defendant in O.S.No.419/1971, petitioner in I.A.No.4142/1984 in O.S.No.419/71 on the file of the Ist Additional Munsiff Court, Neyyattinkara is the appellant. A preliminary decree was passed in O.S.No.419/1971 on 8-11-197. Under the preliminary decree, 8th defendant was allotted to 51 ½ cents, though he claimed ¼ share which originally due to Mallan Raman and sold to Omana which was purchased by the appellant. The preliminary decree was challenged in A.S.No.46/75 by the plaintiffs. As per judgment dated 30-9-1977, the first appeal was allowed modifying the preliminary decree with regard to the right of the plaintiffs. It was found that the plaintiffs are entitled to redemption partition and recovery of ½ share less 3 and 3.4. cents assigned to 9th defendant from A schedule property. With regard to the shares of the defendants it was found that the shares of the defendants will be fixed by the lower court. It is pursuant to the observations, the appellant as well as some of the other defendants filed different petitions for passing a supplementary preliminary decree. The learned Munsiff as per order dated 19-8-1991 dismissed that applications holding that they will not be prejudiced by the final decree by the final fixation of the share of the plaintiffs. It was challenged before the Sub Court, Neyyattinkara in A.S.No.510/1994 and A.S.No.846/1994. The appellant filed A.S.No.846/1994 against the final decree and A.S.No.510/1994 against the dismissal of I.A.No.4142/1984. The learned counsel appearing for the appellant heard. The appeal is filed only against A.S.No.510/1994 and the final decree as confirmed in A.S.No.846/1994 has become final. The argument of the learned counsel was that in view of the observations by the first appellate court in A.S.No.46/75 granting liberty to the defendants to apply for fixation of the shares, the courts below should have decided the question without directing the parties to file a fresh suit. On hearing the learned counsel, I do not find any substantial questions of law involved in the appeal. In the preliminary decree which was modified by the first appellate court in A.S.No.46/75, the claim of the plaintiff was upheld and they were granted ½ share that was granted rejecting the claim of the defendants and that share was not available for the plaintiffs. The learned Munsiff and the learned District Judge consequent to the filing of petitions by the appellant as well as other defendants found that the question of their claim has to be decided in a separate suit. It was also submitted by the learned counsel that some of the defendants have already filed a suit. In such circumstances, the appeal is dismissed granting liberty to the appellant to agitate his claim in the suit or by a separate suit. M. SASIDHARAN NAMBIAR, JUDGE ks. M. SASIDHARAN NAMBIAR, J. ================================ R.S.A. NO. OF 2004 ================================== Dated this the 19th day of February 2008 ORDER This petition is filed to condone the delay of 35 days in filing the appeal. The case of the petitioners is that the first petitioner who was prosecuted in appeal was suffering from acute rheumatic complaint and therefore, the delay was caused. For the reasons stated in the petition, the delay will stand condoned on the petitioner paying or depositing a cost of Rs.750/- to the respondent within three weeks from today, failing which the petitioner will stand dismissed. M. SASIDHARAN NAMBIAR, JUDGE ks.