IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 WP(C).No. 28780 of 2008(A) AGAINST THE ORDER DATED 12.08.2008 IN IA 8382/2007 IN OS.1079/2001 of III ADDL. MUNSIFF'S COURT,THRISSUR .................... PETITIONERS: 1. V.J.VARGHESE AGED 55 YEARS, S/O LATE JOSEPH, VATTAPARAMBIL HOUSE, PARAVATTANY DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 2. BAHULEYAN AGED 65 YEARS, S/O LATE KRISHNAN, KARAYIL HOUSE, MANALUR DESOM, MANALUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.M.B.PRAJITH RESPONDENTS: 1. E.V. SUNIKUMAR, AGED 54 YEARS, S/O EASWARAMANGALAM VASUDEVAN, 3/354 G, PRANAVAM, WHITE FIELD, VIYYUR THRISSUR. 2. INDU N.PRABHA @ INDUVALLY, AGED 45 YEARS, W/O P.NALINAPRABHA AND D/O EASWARAMANGALAM VASUDEVAN 12/383 PRABHALAYAM UZHAVA DESOM, PATTANAKKADU VILLAGE, KADAKKARAPALLY, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 3. P.DEVI SIVADAS @ PARVATHI DEVI, AGED 49 YEARS, W/O CHEMMANI SIVADAS AND D/O EASWARAMANGALAM VASUDEVAN, CHIYYARAM DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK, THRISSUR DIST. 4. SARASWATHY AGED 84 YEARS, W/O EASWARAMANGALAM VASUDEVAN, CHIYYARAM DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 5. E.V. ANILKUMAR, AGED 40 YEARS, S/O EASWARAMANGLAM VASUDEVAN, CHIYYARAM DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK,THRISSUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== W.P.(C) No. 28780 of 2008 ========================== Dated this the 26th day of September, 2008. JUDGMENT The petitioner who is the plaintiff in a suit for partition instituted as O.S No. 1079 of 2001 on the file of III Additional Munssiff's Court, Thrissur, challenges Ext.P10 order dated 12.08.2008 passed by the said court allowing the application (I.A.No. 8382/2007) filed by defendants 2, 3 and 5 under Order 9 Rule 13 C.P.C setting aside the ex parte preliminary decree passed in the case on 19.12.2003. 2. The court below has after evidence held that even though defendants 2, 3 and 5 were residing in their own house, they were shown as residing in the 'tharavadu' house where their mother and the other defendants were residing. It was also proved that the summons to defendants 2, 3 and 5 was served on their mother in the 'tharavadu' house instead of in their separate address where they were residing. Since the said defendants were not duly served, they were held entitled to have the ex parte decree set aside. In view of the findings recorded by the court below, I find myself unable to disagree with the conclusion reached by the court below so as to interfere with the order passed by the court below. It is true that the suit was filed in the year 2001. It was six years after the institution of the suit that the W.P.(C) No. 28780/2008 : 2: application to set aside the ex parte decree was filed in a case where the preliminary decree was passed only on 19.12.2003. 3. The learned counsel for the petitioner submitted that even the preliminary decree which has been passed was in accordance with Ext.A3 partition deed dated 21.06.1985 executed between the defendants and therefore no prejudice would have been caused to defendants 2, 3 and 5 even if the petition to set aside the ex parte decree was dismissed. The said submission may be true. But then, the fact remains that the said defendants were not duly served in the suit and they had the right to have the ex parte decree set aside. But the delay in moving the court particularly when their mother herself was duly served in the suit, also cannot be loss sight of. Hence, the court below shall proceed to try and dispose of the suit (O.S. No. 1079/2001) expeditiously and at any rate within six months of receipt of a copy of this judgment. This writ petition is disposed of as above. Dated this the 26th day of September, 2008. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 28780/2008 : 3: W.P.(C) No. 28780/2008 : 4: