IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 CRP.No. 1194 of 2002(B) -------------------------------- AS.427/2001 of DISTRICT COURT, THRISSUR .................... REVN. PETITIONER(S): PETITIONERS IN IA/APPELLANTS IN AS ------------------------------------ 1. FR.GEORGE KUTTIKKAT, S/O.OUSEPH, ST. ALOSTIOUS COLLEGE, ELTHURTHU, PRESENT ADDRESS: GEORGE KUTTIKKAT, ST. GEORGE HIGH SCHOOL, MALAD EAST, MUMBAI-400 097. ** 2. DAVIS, S/O.KUTTIKKAT OUSEPH, PAZHUVIL VILLAGE, THRISSUR DISTRICT. (DIED) * 3. PAUL, S/O.OUSEPH, IN DO.DO. (DIED) 4. FRANCIS, S/O.DO. IN DO. 5. CICILY, W/O.KUTTIKKAT JACOB, IN DO. 6. THANKACHAN, S/O.KUTTIKKAT OUSEPH, RESIDING IN DO.DO. ADDL. P7 TO P9 ARE IMPLEADED. 7. VALSA PAUL, W/O. PAUL, AGED 49, KUYYIKSY HOUDR, POST PAZHUVIL, THRISSUR TALUK, THRISSUR DISTRICT. 8. FINCE PAUL, S/O. PAUL, AGED 28, DO. DO. 9. CHRIS LOUIS, D/O. DO., CHAVVUR POST, THRISSUR TALUK, THRISSUR DISTRICT. ADDL. P7 TO P9 ARE IMPLEADED AS LRS. OF THE DECEASED P3 VIDE ORDER DTD. 12.7.06 IN IA. 15/10.06. 2ND REVISION PETITIONER DIED. ADDL. P 10 TO P16 ARE IMPLEADED 10. DAISY, W/O. DAVIS, KUTTIKADAN HOUSE, P.O. PAZHUVIL, THRISSUR DISTRICT. C.R.P. NO.1194/2002 11. SAJU, S/O . DO. DO. 12. SUNIL, S/O. IN DO. DO. 13. SOBY , S/O. DO. IN DO. 14. SONY, SON OF DO. IN DO. 15. SWAPNA, D/O. DO. DO. 16. DEBY , D/O. DO. IN DO. DO. ADDL. PETITIONERS 10 16 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED 2ND PETITIONER AS EPR ORDER DTD. 1.8.09 IN IA. 1826/07. BY MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADVS. MR.K.JAYAKUMAR MR.HARISH R. MENON RESPONDENT(S): RESPONDENT IN IA/RESPONDENT IN AS ----------------------------- ANTHONY, S/O.KUTTIKKT OUSEPH, RESIDING AT PAZHUVIL VILLAGE, THRISSUR DISTRICT. BY MR.K.P.DANDAPANI, SENIOR ADVOCATE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2009, ALONG WITH CRP NO. 1828 OF 2003 THE COURT ON 16/12/2009 PASSED THE FOLLOWING: ORDER ON CMP. NOS. 3034/2002, 45/2003 IN CRP. NO.1194/2002 DISMISSED 16/12/2009 SD/- P.Q.BARKATH ALI, JUDGE TRUE COPY P.S. TO JUDGE tss P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - C.R.P.NOs.1194 OF 2002 & 1828 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2009 ORDER Revision petitioners are defendants 1 to 6 in O.S.No.719/1993 of Sub Court, Thrissur and respondent is the plaintiff. The respondent filed the suit for partition and separate possession of his 1/7th share over the plaint schedule properties. Though the petitioners engaged the counsel Sri.Koyath Balakrishna Menon to contest the case, he did not even file the written statement. Therefore, the suit was decreed ex parte and a preliminary decree for partition was passed on September 30, 1995. Thereafter defendants received notice of final decree application. Then also, they engaged the same counsel and filed objection stating that plaintiff has already released his right over the plaint schedule properties to the defendants by Release Deed No.253 of 1997 of Kattoor SRO and also the entire properties devolved on the defendants by virtue of Will executed by their father, document No.37 of 1976 of Kattoor SRO. Thereafter the counsel for defendants did not CRP.Nos. 1194/02 & 1828/03 Page numbers pursue the matter and the defendants were set ex parte and final decree was passed on 22-12-1999. 2. Revision petitioners contend that only when the clerk of their Advocate intimated that delivery of the property had been ordered, they realised that execution proceedings has commenced and that they were set ex parte in the suit. Thereafter they filed an application I.A.No.4382/2001 to set aside the ex parte preliminary decree and filed I.A.No.4381/2001 to condone the delay of 2113 days in filing the said application. They have also filed I.A.No.4383/2001 to set aside the ex parte final decree and I.A.No.4380/2001 to condone the delay of 664 days in filing the said application. The learned Sub Judge dismissed all those applications by a common order dated November 14, 2002. Aggrieved by the said order, C.M.A.No.53/2003 was filed before the District Court, Thrissur against the order of dismissal of I.A.No. 4380/2001 and I.A.No.4382/2001. C.M.A.No.100/2003 was filed against the order of dismissal of I.A.No.4381/2001 and I.A.No.4383/2001. The District Court by the impugned order dated March 29, 2004 dismissed both those C.M.As. CRP.Nos. 1194/02 & 1828/03 Page numbers 3. Meanwhile, the revision petitioners filed regular first appeal against both the preliminary decree as well as the final decree. A.S.No.267/2002 was filed against the ex parte preliminary decree along with I.A.No.3313/2003 to condone the delay of 2569 days in preferring the appeal. A.S.No.427/2001 was filed against the ex parte final decree along with I.A.No.3290/2001 to condone the delay of 693 days in preferring the appeal. 4. The District Judge by a common order dated May 21, 2003 dismissed I.A.No.3313/2003 and consequently A.S.No.267/2002 was also dismissed. By order dated January 29, 2002, the District Court dismissed I.A.No.3290/2001 and consequently the appeal A.S.No.427/2001 was also dismissed. The above civil revision petitions are filed against the order of dismissal of appeals due to the dismissal of delay condonation applications. Revision petitioners have filed two writ petitions also against the dismissal of CMAs. 5. In all these cases the case of the revision petitioners is that plaintiff has relinquished his claims over the remaining property of Sri.Kuttikkatt Ouseph by Release Deed No.253 of 1971 of Kattoor CRP.Nos. 1194/02 & 1828/03 Page numbers SRO and also his father has executed Will No.37 of 1976 of Kattoor SRO concerning the devolution of the properties. All these apart, the 6th defendant was a minor . It was pointed out by the counsel for the revision petitioners that without appointing a guardian for the minor, the lower court has decreed the suit which is a nullity in view of the decisions reported in Ram Chandra Arya v. Man Singh ( AIR 1968 SC 954) and Pankajaksha Kurup v. Fathima ( 1998(1) KLT 668 (FB). Though defendant on attaining majority filed E.A.No.1944/2001 challenging the validity and executability of the ex parte preliminary decree passed, Sub Judge by order dated 12-12-2001 dismissed the same. 6. Counsel for the revision respondent/plaintiff mainly argued that these civil revision petitions are not maintainable in view of the decisions of the Apex Court in Shyam Sundar Sarma v. Pannalal Jaiswal and others ( 2005(1) SCC 436) wherein it has been held that dismissal of an application to condone delay and resultant dismissal of the appeal will be a decree and remedy is by way of appeal. Previously the Apex Court has held in Ratan Singh v. Vijay Singh CRP.Nos. 1194/02 & 1828/03 Page numbers ( AIR 2001 SC 279) that rejection of an application for condonation of delay and consequential dismissal of the appeal as time barred is not a decree , the remedy is revision and not an appeal. It was based on this decision, revision petitioners have filed these civil revision petitions. But subsequently the Apex Court has held in Shyam Sunder Sarma v. Pannalal Jaiswal and others ( 2005(1) SCC 436) that the dismissal of an application to condone delay and resultant dismissal of the appeal will be a decree and remedy is by way of an appeal. 7. In my view, in the light of the principles laid down in the above decision in Shyam Sunder Sarma v. Pannalal Jaiswal and others ( 2005(1) SCC 436), the above two civil revision petitions are not maintainable. But it has been held by the Apex Court in Nawab Shaqafath Ali Khan and others v. Nawab Imad Jah Bahadur and others ( 2009 (5) SCC 162) that : “.... if the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Article 226 and 227 of the Constitution of India, in a given case, it , subject CRP.Nos. 1194/02 & 1828/03 Page numbers to the fulfilment of other conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of it's inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out”. 8. In the light of the principles laid down in the above decision, I feel that the above revisions can be converted into second appeals and relief can be granted. 9. Counsel for revision respondent argued that for converting these civil revision petitions into second appeals, question of law has to be raised. In the present case 6th defendant was a minor and that the trial court without appointing a guardian for the 6th defendant passed preliminary decree and thereafter final decree. That being so, the following question of law is formulated : Whether the preliminary decree for partition passed ex parte against a minor without appointing a guardian is a nullity ? CRP.Nos. 1194/02 & 1828/03 Page numbers 10. Admittedly, preliminary decree as well as final decree were passed ex parte against a minor without appointing a guardian to the minor, 6th defendant. It would be void in the light of the principles laid down in the decisions reported in Ram Chandra Arya v. Man Singh (AIR 1968 SC 954) and Pankajaksha Kurup v. Fathima ( 1998(1) KLT 668(FB). That being so, I am inclined to set aside the preliminary decree as well as the final decree passed by the trial court in this matter. 11. All these apart, on going through the contentions of the parties, I feel that an opportunity should be given to the defendants to contest the suit. In the result, both the revision petitions are allowed treating them as second appeals. I.A.No.3313/2002 in A.S.No.267/2002 on the file of District Court, Thrissur which is to condone the delay in filing the appeal and A.S.No.267/2002 to set aside the ex parte preliminary decree dated 30-09-1995 in O.S.No.719/1993 of Sub Court, Thrissur are allowed. I.A.No.3290/2001 in A.S.No.427/2001 as well as A.S.No.427/2001 on the file of District Court, Thrissur are allowed. Ex parte final decree dated 22-12-1999 in I.A.No.653/1997 in CRP.Nos. 1194/02 & 1828/03 Page numbers O.S.No.719/1993 of Sub Court, Thrissur is set aside. The learned Subordinate Judge is directed to take on file the suit O.S.No.719/1993 for consideration and dispose of the same afresh in accordance with law after giving opportunity to both parties to adduce evidence. The trial court shall dispose of the suit within six months from the date of receipt of the copy of this order. The parties shall appear before the trial court on 7.1.2010. P.Q.BARKATH ALI JUDGE sv. CRP.Nos. 1194/02 & 1828/03 Page numbers