IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 FAO.No. 152 of 2006() ------------------------------ AS.20/2003 of I ADDL. DISTRICT COURT, PALAKKAD OS.128/1992 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/RESPONDENTS: --------------------------------------- 1. P. SAROJINI AMMAL W/O. LATE P. SRENIVASAN PILLAI. 2. PONNAMBLAM, S/O. SAROJINI AMMAL, 3. KRISHNAMOORTHY, S/O. SAROJINI AMMAL ALL RESIDING AT PARA, ELAPULLY AMSOM, PALAKKAD. BY ADV. SRI.P.R.VENKETESH RESPONDENTS: APPELLANT: -------------------------------------- 1. M. MOHAMMED IBRAHIM, S/O. MUTHU ROWTHER, PUDUPPALLITHERUVU, YAKKARA AMSOM, PALAKKAD TALUK AND DISTRICT. 2. JAMBUNATHAN, S/O. SAROJINI AMMAL, PARA, ELAPULLY AMSOM, PALAKKAD. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH FOR R1 SRI.M.HARISHARMA FOR R1 SRI.T.P.ELDHOSE FOR R1 SMT.O.K.SANTHA FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 14/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.1704 OF 2006 IN FAO NO.152 OF 2006 DISMISSED. 14.7.2008 ID/- M.N. KRISHNAN, JUDGE. vsv M.N.KRISHNAN, J ===================== FAO No.152 OF 2006 ===================== Dated this the 14th day of July 2008 JUDGMENT This appeal is preferred against the judgment and decree in A.S.No.20 of 2003 of the I Addl.District Court, Palakkad. By the said judgment, the learned District Judge has set aside the judgment and decree of the court below and remanded the matter for the sole purpose of passing fresh judgment and decree after giving reasonable opportunity to the plaintiff to seek impleadment of the legal representatives of deceased 2nd defendant, if the plaintiff so chooses. 2. Learned counsel for the appellant very strongly contends before me that the 2nd defendant was remaining ex parte in the suit and the suit had been dismissed and there was no necessity for the court to set aside the entire judgment and decree but would have been sufficient if there has been a direction to implead the LRs of the 2nd defendant alone and for hearing them alone. The learned District Judge has held that “this decree is inseparable from the decree in favour of other defendants”. I am told the suit is one for declaration and injunction and really the title of the parties are FAO 152/2006 -:2:- very much alive for consideration in this case. There has been no pleading to the effect that there is a substantial representation and therefore no impleadment is necessary. So when the judgment cannot be set aside in part it is only possible to set aside the entire judgment and decree and direct the court below to consider the matter as ordered by the appellate court. Therefore, I do not want to interfere with the discretion and decision rendered by the I Addl.District Judge and therefore the appeal is dismissed and I direct the parties to appear before the trial court on 21.8.2008. M.N.KRISHNAN, JUDGE Cdp/-