IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 WP(C).No. 18419 of 2010(O) -------------------------- AGAINST THE ORDER IN IA.672/09 IN OS.650/2000 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONER: --------------- DEVI, D/O.MURUKANDI, MARA THODI, THANNISSERI.P.O, PALGHAT. BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENTS: --------------- 1. RUGMINI, W/O.LATE CHAMI. 2. SANTHA, D/O.LATE CHAMI. 3. UNNIKRISHNAN, S/O.LATE CHAMI. 4. SASI, S/O.LATE CHAMI, R1 TO R4 RESIDING AT PARAPANAKALATHINGAL HOUSE, KINNASSERY.P.O, PALGHAT. 5. RAMAKRISHNAN, S/O.LATE MURUKANDI, AGED 69, PALAPPARAMBU HOUSE, KIZHAKKETHOTTUPALAM, PERUVEMBA.P.O, PALGHAT. 6. VESA, D/O.MURUKANDI, AGED 64, W/O.GOPALAN, PATHACKAL, KADUMTHURUTHY, KINNASSERY.P.O, PALGHAT. 7. PANCHALI, W/O.LATE KRISHNAN, AGED 59, 8. VANAJA, D/O.LATE KRISHNAN, AGED 37 9. JALAJA, D/O.LATE KRISHNAN, AGED 35 10. SIVAMANI, S/O.LATE KRISHNAN, AGED 33 11. SIVADAS, S/O.LATE KRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 18419 of 2010 --------------------------------------- Dated this 24th day of June, 2010 JUDGMENT The challenge in this petition is at the instance of plaintiff in O.S.No.650 of 2000 of the court of learned Additional Munsiff, Palakkad condoning the delay in filing an application to amend the decree or to set aside ex parte decree as against the petitioner in I.A.No.65 of 2009. Suit was for partition of schedule properties. plaintiffs are the daughter and wife of the late Murukandi. The suit property belonged jointly to the said Murukandi and his brother, the late Chami. Thus Murukandi had half right in the suit property which he bequeathed to plaintiff No.1 subject to a life estate in favour of plaintiff No.2. Defendant Nos. 5 and 6 are the children of Murukandi in his first wife. Defendant Nos.7 to 11 are children of a predeceased son of Murukandi. Defendant Nos.1 to 4 are legal representatives of Chami. As per averments in the plaint, plaintiff No.1 claimed half share of the suit property on the strength of the Will executed by Murukandi, she claimed partition and separate possession of that half share. Defendants did not contest the suit. Learned Additional Munsiff passed a preliminary decree for partition allowing half share in the suit property to plaintiff No.1 W.P.C.No.18419 of 2010 : 2 : on the strength of the Will. Thereafter defendant Nos.1 to 4 filed application to amend/set aside the decree and I.A.No.672 of 2009 to condone the delay in filing that application. They claimed that even as per the averments in the plaint for which they had no contest, the remaining half share in the property belonged to the late Chami which devolved on them as his legal heirs but when the court passed a preliminary decree, it directed that the remaining half share will go to 'the defendants' meaning thereby that defendant Nos.5 to 11 are also to get a share in the remaining half share along with defendant Nos.1 to 4. They stated that they were under the impression that on the plaint averments the remaining half of the suit property will be allotted to them as legal heirs of the late Chami and hence they did not contest the suit. The court considered the applications and condoned the delay vide order on I.A.No.672 of 2009. That order is challenged in this writ petition. According to the learned counsel, it is after a long delay that the application is filed and hence there is no justification in condoning the delay in filing the application. 2. An application to amend/set aside decree if disposed of, remedy of petitioner/plaintiff No.1 is to challenge the said order. I do not dispute that a challenge to the order allowing an application for condoning the delay is maintainable. But, when petitioner has the opportunity to challenge the ultimate order of W.P.C.No.18419 of 2010 : 3 : amending/setting aside the decree the proper course open to the petitioner is to challenge that order as provided under law and in that proceeding, challenge correctness of the order allowing I.A.No.672 of 2009 condoning the delay. In the circumstances, I am not persuaded to entertain this writ petition. Hence this writ petition is closed without prejudice to the right of petitioner to challenge the order if any passed by the learned Munsiff on the application to amend/set aside the decree and to urge the contentions raised by the petitioner in this proceeding against the order allowing I.A.No.672 of 2009. (THOMAS P JOSEPH, JUDGE) Sbna/-