IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 29507 of 2008(K) -------------------------- OS.428/1996 of MUNSIFF COURT, KARUNAGAPPALLY .................... PETITIONER(S): --------------------- K.NALINAKSHAN, 51 YEARS, S/O.LATE KUNHIRAMAN, R/AT.THANNIYOOR, MEENATHATHIL,(SREE GEETHANJALI),PEERUMEDU TALUK, PEERUMEDU VILLAGE, MLAMALA KARA, THENGAKKALLU PO., IDUKKI. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN RESPONDENT(S): ---------------------- 1. L.GOMATHY, PERUMPUZHAMURIYIL, PUNAKKATHAR CHERI, THADAVILLA, PUTHENVEEDU, R/AT.MUKALUVILA, PUTHENVEEDU, ADOOR PARAKKOTTUMURI. 2. G.SUBHADRA, DO.DO. 3. G.LALITHA, DO.DO. 4. G.SUKESHINI, DO.DO. 5. G.SUMITHRA, DO.DO. 6. T.RAGHUNATHAN, DO.DO. 7. G.REJATHA, DO.DO. 8. T.T.KALADHARAN, ALKA VILLA, PUTHUPPALLY VADAKKU, KAYAMKULAM VILLAGE. 2 9. PONNAMMA, GOMATHY, THANNIYOOR MENATHATHIL, EDAPPALLY KOTTA PO., R/AT. KAMBAKATHUMKARA VEEDU, VAKAYAR KARA PATHANAPURAM TALUK, PATHANAMTHITTA. 10. GOMATHY, W/O.PRABHAKARAN, THANNIYOOR MEENATHATHIL, EDAPPALLY KOTTA PO., R/AT.ENATHUTHAZHATHU KULAKDAYIL (PRANAVAM) VEEDU, KALYAPURAM VILLAGE, KOTTARAKKARA TALUK. 11. L.REMANI, THIKKINAPURATH VEEDU KADATHOOR MURI, THAZHAVA VILLAGE 12. VISWANATHAN, THANNIYOOR MEENATHATHIL, EDAPPALLY KOTTA PO., R/AT.VISWA MANDIRAM, EZHUKONE KARA, EZHUKONE VILLAGE. 13. KAUSALYA, THANNIYOOR MEENATHATHIL EDAPPALLY KOTTA PO., R/AT. HARIAL BHAVAN ENAKATHU KAR, ENAKATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA. 14. KUNJUKUNJU, SUNITHA BHAVAN, ELLUKUZHI WARD, PUNAKKATHOOR MURI, KUNDARA VILLAGE. 15. K.SADASIVAN, SUNITHA BHAVAN, ELLUKUZHI WARD, PUNAKKATHOOR MURI, KUNDARA VILLAGE. 16. K.KARHIKEYAN, SUNITHA BHAVAN, ELLUKUZHI WARD, PUNAKKATHOOR MURI DO. 17. K.OMANA, SUNITHA BHAVAN, DO.DO. 18. K.SANTHA, SUNITHA BHAVAN, DO.DO. 19. K.BHASI, SUNITHA BHAVAN, DO.DO. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.29507 of 2008 = = = = = = = = = = = = = = Dated this the 7 th day of October, 2008 JUDGMENT Petitioner, who claims to be a member of the Schedule Caste and presently working as Deputy Tahasildar in the head quarters at Udumbanchola and who claims to be residing in Idukki district since 1987, seeks a direction to the Munsiff's Court, Karunagappally to consider Exts.P2 and P3 applications and pass final orders and until then not to proceed with the execution of the final decree dated 13.12.06 passed in O.S.No.428 of 1996. 2. The aforementioned suit was instituted by the respondents 1 to 7 herein seeking partition and separate possession of 2/5th share over one item of immovable property admeasuring 15 cents with a house therein situated in Karunagappally. The petitioner would allege that at no stage of suit was he given notice of the same and both the preliminary decree dated 23.1.99 and final decree dated 13.12.06 were passed behind the back of the petitioner who was kept in the W.P.(c).No.29507 of 2008 2 dark about the same. He claims to have invested money for constructing the house in the family property situated in the plaint schedule property. 3. Ext.P2 is the application filed by the petitioner before the court below under Order IX Rule 13 C.P.C for setting aside the preliminary decree as well as the final decree, both passed ex parte against the petitioner. Ext.P3 is the petition to condone the delay of more than 11 years stating that eventhough the petitioner came to know about the suit and the decrees only on 3.10.08, in case the court finds that time began to run from the date of decree, the delay may be condoned. 4. In the fitness of things I consider it necessary to direct the Munsiff's Court, Karunagappally to dispose of Exts.P2 and P3 applications filed as I.A.No.1453 and 1454 of 2008 expeditiously after hearing both sides. The court below shall take into account the petitioner's allegations and the Court shall meticulously examine whether the petitioner had been duly served in the suit as well as in the final decree proceedings. If he had been served only by substituted service, the same may not be due service in view of the Explanation to Article 123 of the Limitation Act, W.P.(c).No.29507 of 2008 3 1463. In case the court below finds that the petitioner had not been duly served the Court shall not take a hypertechnical view that only one petition is filed for setting aside both the preliminary and final decrees which were passed ex parte. If, on the other hand the court below finds that the petitioner had been duly served in the suit and he had been watching the whole proceedings with ulterior motives, he may not deserve any sympathy. Ext.P2 and P3 applications shall be disposed of expeditiously and at any rate, within 2 months of receipt of a copy of this judgment. Until the disposal of Exts.P2 and P3 applications, the court below shall not execute the final decree passed in O.S.No.428 of 1996. This writ petition is disposed of as above. Dated this the 7 th day of October, 2008. V. RAMKUMAR, JUDGE sj