IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 AS.No. 345 of 1997() -------------------- AGAINST THE ORDER DATED 02/07/1996 IN IA.2255/92 IN OS.255/1983 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT: ----------- 1. CHANDRASEKHARAN, S/O.KUTTAN, RESIDING IN CHERUVANNUR AMSOM DESOM, . KOZHIKODE TALUK. 2. KRISHNAN, S/O. KUTTAN. -DO- BY ADV. SRI.K.V.SOHAN SRI.K.RAJEEV RESPONDENTS: ------------- 1. AMMUNNI, W/O. KOLLANKANDI CHOYI, HOUSE NO.27/1439, KOLLANIKADI HOUSE, GOVINDAPURAM, KOZHIKOE – 13. 2. SAVITHRI, D/O.KOLLANKANDI CHOYI, -DO- 3. BHASKARAN, S/O. -DO- 4. DEVADASAN -DO- -DO- 5. SREEMATHI -DO- -DO- 6. MANOHARAN -DO- -DO- 7. PRABHAVATHI -DO- -DO- 8. SUDHAKARAN -DO- -DO- 9. NARAYANI, D/O. CHANDUKUTTY (DIED ON 4.10.1996) 10. KAMALA, W/O. PAYYERI BASKARAN, PAYYERI HOUSE, P.O. BEYPURE KOZHIKODE – 15. 11. P.SAHADEVAN, SOUTH MADE STREET, WECOME COLONY. VILLIVAKKAM, MADRS – 600 -49. 12. N.K.JEEVARAJI, N.K.K.HOUSE, P.O. THAVAKKODE VIA CHEMANCHERI, KOZHIKODE. 13. SUCHITHRA, N.K.K.HOUSE, P.O. THAVAKKODE, VIA. CHEMANCHERI KOZHIKODE. 14. INDIRADEVI. -DO- 15. AMBIKA -DO- 16. SABITHA -DO- 17. REJULA -DO- 18. INDIRADEVI M.P. W/O. LATE M.P.NARAYANAN, MANNATHAM PARAMBA, P.O.VENGERI, KOZHIKODE – 673010. 19 NALINI, W/O. LATE K.GANGADHARAN, KURUPPAM VEEDU, KUNNATHUTHAZHAMVAYALIL, P.O. NADAKKAVU, KOZHIKDOE – 11. 20. JAYADEVAN, POLICE SATION,MINICOY, H.P.O.KOCHI, LAKSHADWEEP, PIN 682555. 21. N.VIMALA, NEDIYEDATH HOUSE, ANKAKALARI PARAMBA, KUNDUPARAMBA, P.O. EDAKKAD, CALICUT – 673005. 22. P.JAYACHANDRAN, PANIKKAL HOUSE, ITHAMVEEDUPARAMBIL, P.O.CHERUVANNUR FEROK, KOZHIKODE – 31. 23. MADHAVI, W/O. LATE SEKHARN, “MANAPRABHA COTTAGE” THAPPATIMEETHAL PARAMBA, P.O. KOMMERI, CALICUT – 7. 24. K.ANANDAN, S/O. CHANDUKUTTY, MANDIDUKKIL PARAMBA, HOUSE NO.33/1770 P.O.CHEVAYUR, PAROPPADY, CALICUT. 25. K.ROHINI, W/O. CHOYI AMMANKKANDIYIL HOUSE, P.O.ELATHUR, EAST ELATHUR RAILWAY STATION, CALICUT. 26. K.RAMAN, HOUSE NO.404 VIVEKANANDA NAGAR, BANGALORE – 47, KARANATAKA STATE. 27. MYDHILI, W/O. LATE CHANDUKUTTY, VALLANGATTU HOUSE, NEAR PARTHASARATHY TEMPLE, KAKKODI MUKKU, CHERUKULAM ROAD, KAKKODI, KOZHIKODE. 28. KALLIANI,D/O. KOLLAMKANDIYIL KUTTAN, (DIED LR'S RECORDED) CHERUVANNUR AMSOM DESOM, KOZHIKODE. 29. T.V.SHYAMALA DEVI, W/O. DECEASED SUKUMARAN, 'GOKULAM' WEST NADAKKAVU, CALICUT – 11. 30. SHEELA, D/O. T.V.SHYAMALA, -D0- 31. SHYJA, -DO- -DO- ( IT IS RECORDED THAT THE 28TH RESPONDENT DIED AND THE APPELLANTS ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 28TH RESPONDENT AS PER ORDER ON CMP NO.7814/98 DATED 27.11.1998) BY ADV. SRI.P.V.KUNHIKRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT NO REPRESENTATION TODAY ALSO. DISMISSED FOR DEFAULT. 26.6.2008 SD/- PIUS C.KURIAKOSE, JUDGE. ORDER ON CMP NO.3036/1997 IN A.S. NO.345/1997 DISMISSED 22.7.2008 SD/- PIUS C.KURIAKOSE, JUDGE. /TRUE COPY/ P.A. TO JUDGE. PIUS C.KURIAKOSE, J. ------------------------ A.S. NO.345 OF 1997 JUDGMENT 26TH JUNE 2008 PIUS C. KURIAKOSE, J. ---------------------------------- A.S. NO. 345 of 1997 ---------------------------------- Dated this the 22nd day of July , 2008 JUDGMENT This appeal is directed against the final judgment passed in a suit for partition against the order in an application for passage of final decree. One of the grounds raised in the memorandum of appeal is that in the final decree application, the petitioners were set ex-parte and they had filed application for setting aside the ex parte order. That application I.A. No.3616/1992 had been posted by the court to 5.7.2006 and that it is without noticing that application that the learned Subordinate Judge passed the impugned order on the application for passage of final decree. A perusal of the proceedings paper and the records will reveal that the grievance of the appellants that the final decree application was ordered during the pendency of I.A. 3616/1992 is correct. The records will further reveal that the I.A.3616/1992 which stood posted originally to 5.7.2006 was suo moto advanced by the court below and closed on the basis that “ nobody pressed” the application. The A.S.No.345/1997 2 submission of the learned counsel for the appellants is that passage of the final judgment leading to the final decree during the pendency of I.A.3616/1992 was highly improper. 2. I would have been inclined to accept the above argument. But, my scrutiny of the records reveals that even though the appellants had been set ex parte in the application for passage of final decree, they were permitted by the court below to participate in the final decree proceedings in the case. They were given notice by the Advocate Commissioner, who was appointed by the court for effecting partition on the basis of the preliminary decree. The commissioner's report will show that the appellants were present during the inspection by the Commissioner. The order sheet will further show that all parties were given opportunity by the court for filing objections to the commission report. Significantly, the appellants did not file any objection to the commission report. It is on the basis that nobody has filed objection to the commission report, that the learned subordinate judge has passed the impugned preliminary judgment. That being the position, in my opinion, even if I.A.3616/1992 had been allowed and the appellants had been A.S.No.345/1997 3 permitted to file objections to the final decree application no useful purpose would have beens served from their point of view. The preliminary decree has attained finality. If the appellants were having any objections to the recommendations of the commissioner regarding allotment of shares it was up to them to have filed objection to the commissioner's report by availing the opportunity given to them by the court. They never chose to avail the the opportunity for filing objections. This will only indicate that they did not have any serious grievance regarding the share allotment recommended by the commissioner in his report. Having gone through the advocate commissioner's report, I feel that the commissioner was reasonable in his approach to the issue and has kept all the relevant equities and aspects in his mind. The learned subordinate judge cannot be blamed for accepting the commissioner's report and passing final decree in terms of that commissioner's report. This appeal will stand dismissed. No costs. PIUS C. KURIAKOSE JUDGE A.S.No.345/1997 4 dpk PIUS C. KURIAKOSE,J ---------------------------------- A.S. NO. 345 of 1997 --------------------------------- JUDGMENT 22ND JULY 2008-