IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 CRP.No. 1243 of 2005() ---------------------- AGAINST THE ORDER DATED 31/05/2005 IN IA 372/00IN IA 872/1987 IN OS.63/1971 of SUB COURT, KASARAGOD .................... REVN. PETITIONER(S): DEFENDANT ------------------------------ 1. S.SANTHAKUMARI, D/O.SANKARAN VAIDYAR, RESIDING AT KUTHIKA VALAPPU, THALANGARA, P.O.KASARAGOD. 2. S.RAMKUMARAN, S/O.SANKARAN VAIDYAR, RESIDING AT KUTHIKA VALAPPU, THALANGARA, P.O.KASARAGOD. 3. S.RUGMINI, D/O.SANKARAN VAIDYAR, MURUKKUMTHODIYIL HOUSE, P.O.KADANCHERI, VIA.KALADY, MALAPPURAM DISTRICT. 4. S.RAMANI, D/O.SANKARAN VAIDYAR, MURUKKUMTHODIYIL HOUSE, P.O.KADANCHERI, VIA.KALADY, MALAPPURAM DISTRICT. 5. S.RAMA CHANDRAN, S/O.SANKARAN VAIDYAR, RESIDING AT KUTHIKA VALAPPU, THALANGARA, P.O.KASARAGOD. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRA NATH SRI.HARI SHARMA M SRI.T.P.ELDHOSE SRI.O.K.SANTHA RESPONDENT(S): PETITIONERS/PLAINTIFFS ------------------------------------- 1. K.C.DAKSHAYINI, W/O.V.ACHUTHAN MASTER, VARIKKOTTIL HOUSE, P.O.KADAMBOOR, VIA.OTTAPPALAN. 2. K.C.SUSHEELA, W/O.K.V.BALAN, KUNDIL VADAKKETHIL HOUSE, P.O.PATTITHARA, VIA.THRITHALA. 3. S.HAREESH KUMAR, S/O.AYYAPPA, KOPPALA HOUSE, P.O.SHIRIYA, VIA.KUMBLA, KASARAGOD TALUK. 4. S.VAGEESHA, S/O.S.AYYAPPA, RESIDING AT KOPPALA HOUSE, P.O.SHIRIYA, VIA.KUMBLA, KASARAGOD TALUK. 5. S.VIJAYA LAKSHMI, D/O.AYYAPPA, RESIDING AT KOPPALA HOUSE, P.O.SHIRIYA, VIA.KUMBLA, KASARAGOD TALUK. 6. S.SUMATHI, D/O.S.AYYAPPA, RESIDING AT KOPPALA HOUSE, P.O.SHIRIYA, VIA.KUMBLA, KASARAGOD TALUK. 7. S.YASHODHARA, S/O.AYYAPPA, RESIDING AT KOPPALA HOUSE, P.O.SHIRIYA, VIA.KUMBLA, KASARAGOD TALUK. 8. S.KALAVATHI, D/O.AYYAPPA, RESIDING AT KOPPALA HOUSE, P.O.SHIRIYA, VIA.KUMBLA, KASARAGOD TALUK. 9. S.SHAMALA KUMARI, D/O.AYYAPPA, RESIDING AT KOPPALA HOUSE, P.O.SHIRIYA, VIA.KUMBLA, KASARAGOD TALUK. 10. B.MADHAVI, W/O.ANANDAN, KIZHAKKE VALAPPU, THERUVATH, THALANGARA, P.O.KASARAGOD. ADV. SRI.S.VINOD BHAT FOR R1,2 SRI.K.M.SATHYANATHA MENON FOR R5 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.1243 of 2005 - A --------------------------------- Dated this the 14th day of September, 2009 O R D E R The revision is filed by the defendant in O.S.No.63 of 1971 on the file of the Sub Court, Kasaragod. The above suit was one for partition. In the final decree proceedings the respondents 1 to 9/plaintiffs applied for sale of the suit property under the provisions of the Partition Act. Property was valued by appointing an advocate commissioner and it was assessed at Rs.42,940/-. Respondents 1 to 9/plaintiffs moved an application filing objections to the report and seeking auction of the property. That being dismissed by the trial court, the above respondents preferred revisions before this Court. This Court disposed of the revisions directing the trial court to conduct auction of the plaint property as between the sharers to the property. The order so passed by this Court was challenged by the present petitioner preferring a special leave petition before the Supreme Court. But, that petition was dismissed. Pursuant thereto in the auction held the property was knocked down by C.R.P.No.1243 of 2005 - A 2 the petitioner for a total sum of Rs.8,50,000/-. One half of the sale price collected in auction was due to respondents 1 to 9 and later, it was also released to them. Subsequently, petitioner filed an application under Section 47 CPC before the trail court contending that any order passed under Sections 2, 3 and 4 of the Partition Act amounted to a decree and only an appeal is entertainable against any such order. The revision filed earlier by respondents 1 to 9 and the orders passed thereof, according to the petitioner, was therefore patently erroneous and illegal since they have not resorted to file an appeal as provided under Section 8 of the Partition Act. The learned Munsiff after, hearing both sides, dismissed the application of the petitioner filed under Section 47 CPC as aforesaid. Propriety and correctness of that order is challenged in this revision. 2. I heard the counsel on both sides. 3. Having regard to the submissions made with reference to the challenge in the revision, I find there is no merit in the revision. Petitioner had challenged the order passed in the revisions by filing a special leave petition before the apex court C.R.P.No.1243 of 2005 - A 3 and that petition was dismissed. Even assuming that the order passed by the trial court was amenable to an appeal, revision having been entertained by this Court, it is not open to the petitioner to challenge the order before the court below under Section 47 CPC. There is no merit in the revision, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-