IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 OP(C).No. 1119 of 2010(O) ------------------------- IA NO.1578/2003 IN OS.492/1998 of MUNSIFF COURT, KARUNAGAPPALLY .................... PETITIONERS ------------------------------- 1. PADMANABHAN PEETHAMBARAN, PATHIYIL VEEDU, KOLLEPURAM, KARALI JUNCTION, SASTHAMKOTTA. 2. PADMANABHAN DIVAKARAN, D.R.BHAVANAM, PULIYOORVANCHI, SOUTH MURI, ATHINADU VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- 1. GOPALAN ACHARY BALAKRISHNACHARY, KATTANLAYYATHU PADEETTATHIL, MARUTHORKULANGARA SOUTH MURI, KARUNAGAPPALLY VILLAGE-690518. 2. GOPALAN ACHARY RAJAN ACHARY, RAJ BHAVANAM, MARUTHORKULANGARA SOUTH MURI, KARUNAGAPPALLY VILLAGE-690518. 3. GOPALAN ACHARY SASI, KOLLANTAYYATHU VEEDU, MARUTHORKULANGARA SOUTH MURI, KARUNAGAPPALLY VILLAGE-690518. 4. SHIVANI SOBHANA, THADATHIVILA VEEDU, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY VILLAGE-690518. 5. SHIVANI LATHA, THEKKEVATTATHARA VEEDU, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY VILLAGE-690518. 6. LEKSHMIKUTTY VALSALAKUMARI, MULLASSERIL VADAKATHIL VEEDU, NAMBARUVIKALA MURI, KARUNAGAPPALLY VILLAGE-690518. OP(C) NO.1119/2010 2 7. LEKSHI SUBHADRA, MADATHIL VEEDU, ADINADU SOUTH MURI, ADINADU VILLAGE-690519. 8. DIVAKARAN ACHARI, KONATHU MEKKETHARAYIL, NAMBARUVIKALA MURI, KARUNAGAPPALLY VILLAGE-690518. 9. D.SASIDHARAN, -DO- -DO- THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1119 of 2010 -------------------------------------- Dated this the 10th day of December, 2010. JUDGMENT Exts.P5 and P6, order on the final decree application and the final decree drawn up pursuant to that order in O.S.No.492 of 1998 of the court of learned Munsiff, Karunagappally are under challenge at the instance of defendant Nos.5 and 7 in the suit for partition. A preliminary decree was passed and that was appealed to the court of learned District Judge, Kollam. Learned District Judge passed Ext.P4, interim order of stay on July 17, 2003 on I.A.No.921 of 2003 in R.F.A.No.96 of 2003 against passing of final decree until disposal of the appeal. Trial court passed final decree as per Ext.P5, order on July 28, 2005 and that was followed by drawing up of Ext.P6, final decree. Petitioners say that they were not aware of passing of the final decree and learnt about it only when delivery was about to take place. Pursuant to the final decree delivery was also effected. Petitioners filed this petition on 27.09.2010 challenging Exts.P5 and P6. The main contention that the trial court has passed final decree disregarding the order of stay against passing such decree granted by the appellate court by Ext.P4, order referred to above and hence passing of final decree is without jurisdiction. 2. In the light of the above submission of petitioners I called for a report from the learned Munsiff, Karunagappally. Learned Munsiff has submitted OP(C) No.1119/2010 2 his report dated 27.11.2010 wherein it is stated that passing of final decree alone was stayed (as per Ext.P4) and that the order was communicated to the court of learned Munsiff on 23.07.2003 and it was noted on the application for final decree. But the final decree happened to be passed by the then Munsiff on 28.07.2005 by mistake. Learned District Judge dismissed the appeal on 11.11.2008. No doubt, learned Munsiff has passed order on I.A.No.1578 of 2003 and has drawn up a final decree at a time when stay against passing of final decree was in force which the learned Munsiff was bound by. It is pointed out by learned counsel that petitioners in I.A.No.1578 of 2003 who are aware of Ext.P4 also did not bring it to the notice of learned Munsiff and obtained an order on I.A.No.1578 of 2003. 3. No doubt, the final decree has been passed at a time when there was stay in force. Question is whether this Court is required to exercise its supervisory jurisdiction under Article 227 of the Constitution at this belated stage. As aforesaid, final decree was passed on July 28, 2005 and this petition is filed only on 27.09.2010. Normally the proper course open to the petitioners was to challenge the final decree in appeal. In view of the delay involved in the matter, I do not consider it necessary that the supervisory jurisdiction has to be exercised against the impugned order and the final decree. But I make it clear that this order will not stand in the way of petitioners challenging final decree as provided in the Code of Civil Procedure and seeking to condone the delay in filing the appeal stating reasons and if any such application for condonation of delay is preferred, appellate court shall consider the application having regard to all the OP(C) No.1119/2010 3 relevant facts and circumstances including the fact that final decree was passed at a time when it was prevented by Ext.P4, order and also the claim of petitioners that they were not aware of passing of the final decree. With the above observations, this petition is closed. THOMAS P.JOSEPH, Judge. cks