IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 CRP.No. 1168 of 2004() ---------------------- AGAINST THE ORDER DATED 16/06/2004 IN IA.151/2004 IN OS.437/1983 of PRL.M.C., KOCHI .................... REVN. PETITIONER(S): PLAINTIFF: ------------------------------- FRANCIS ABRAHAM, S/O. ABRAHAM, CHARANGATTU (HOUSE), KUMMADOR ODATHA, FORT KOCHI, KOCHI-1. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT(S): DEFENDANTS: -------------------------- 1. P.B.MANUEL (DIED), PUTHENPURACKAL HOUSE, RESIDING IN HOUSE NO.XI/1229 KUMMADOR ODATHA, KOCHI-1. 2. POULINE MANUEL, W/O. P.B.MANUEL, PUTHENPURACKAL HOUSE, RESIDING IN HOUSE NO.XI/1229 KUMMADOR ODATHA, FORT KOCHI, KOCHI-1. 3. FRANCIS XAVIOUR, S/O. LATE P.B.MANUEL, -DO-. 4. P.M.BAREED, S/O. LATE P.B.MANUEL, -DO-. 5. TRESA P.M., D/O. LATE P.B.MANUEL, -DO-. 6. MARY P.M., D/O. LATE P.B.MANUEL, -DO-. 7. ANTONY P.M., S/O. LATE P.B.MANUEL, -DO-. 8. MARGARET MARY, D/O. LATE P.B.MANUEL, -DO-. ADV. SRI.P.F.THOMAS, SENIOR ADVOCATE FOR R2,4&6 SRI.SHIJU VARGHEESE FOR R2,4 & 6 SRI.DILEEP VARGHESE FOR R2,4 & 6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J ------------------------------------- C.R.P No.1168 OF 2004 -------------------------------- Dated this the 8th day of March 2010 ORDER Petitioner is the plaintiff in O.S No. 437 of 1983 on the file of Principal Munsiff Court, Kochi. Suit filed for recovery of possession of 7.5 cents of property described as 'B' schedule was decreed in favour of the plaintiff. On the claim of kudikidappu raised by the defendant, there was a reference to the Land Tribunal. Pending consideration of that claim by the Land Tribunal, the defendant passed away. He had also moved an independent application for claiming kudikidappu, according to the counsel for the plaintiff. Reference from court was considered with the independent application, both of them together. The legal representatives of the defendant, it is submitted, had been brought on record in the proceedings of the Land Tribunal and finally, after enquiry, the reference was answered negativing the claim of kudikidappu. Returning the reference, an exparte decree against the defendant was passed without bringing in his legal representatives on record before the civil court. That decree was challenged by the legal heirs of the defendant preferring an appeal on the ground the decree was a nullity which, however, was later withdrawn by them with liberty to impeach the executability C.R.P No.1168 OF 2004 Page numbers of the decree in execution. The plaintiff, after moving for executing the decree, filed an application on the trial side under Section 152 of the Code of Civil Procedure for recording the legal representatives of the deceased defendant in the decree. That application was objected to by the legal representatives of the defendant. The learned Sub Judge dismissed that application holding such a petition is not maintainable under Section 151 and 152 of the Code of Civil Procedure. Propriety and correctness of that order is challenged in the revision. 2. I heard the counsel on both sides. From the submissions made, it is noticed that the decree was passed as early on 26/09/1989. The execution petition was filed by the plaintiffs only on 14/07/2003. The I.A giving rise to the order challenged in the revision moved on the trial side for correcting the decree was moved later ie, on 07/01/2004. The learned counsel for the petitioner has handed over to me a copy of the judgment rendered by the trial court permitting withdrawal of the appeal moved by the legal representatives of the defendant in the suit. That appeal, is seen filed in 1990 and disposed of permitting withdrawal by judgment dated 10/10/1991. Even assuming that there was a stay after admitting that appeal till its disposal, an arithmetical calculation made with reference to the date of the C.R.P No.1168 OF 2004 Page numbers decree, 26/09/1989, would indicate that as on the date when the execution petition was filed, it was hopelessly barred by limitation. When that be the case, I find no further scrutiny on the merits of the impugned order is warranted in the present case. Revision is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv