IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 CRP.No. 801 of 2008() ------------------------- O.S. No. 808/1969 of PRINCIPAL MUNSIFF'S COURT, ERNAKULAM REVN. PETITIONER/ADDL. 10TH RESPONDENT IN FINAL DECREE APPLICATION: ------------------------------------------------------------------------ SUSEELA.T. AGED 58 YEARS, D/O.THELAPARAMBIL VILASINI AMMA AND W/O.GOPALAKRISHNAN, VIMA VIHAR, MARADU VILLAGE,KANAYANNUR TALUK. BY ADV. SRI.K.DIVAKARAN NAIR SRI. K.A. SHAJI MATHEW RESPONDENTS/PETITIONERS AND RESPONDENT 1 TO 9 IN THE FINAL DECREE APPLICATION ----------------------------------------------------------------------- 1. LALITHA, W/O.RAVINDRAN,AGED 63, UTHANAT NADAMA VILLAGE, THRIPUNITHURA-682 301 2. KSHEMAVATHY, W/O.BOSE, AGED 61, MUREKAD, KAKKANAD, KOCHI. 3. GOKULAM,S/O.RAGHAVAN, AGED 58, CHANAYIL EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK 4. HYMAVATHY, W/O.MOHANAN, AGED 53, MANACHOVATTIL ENATHY, VAIKOM. 5. SALIMKUMAR, S/O.RAGHAVAN, AGED 51 CHANAYIL, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. 6. RUGHMINI, D/O.NARAYANAN, AGED ABOUT 70, CHANAYIL, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. C.R.P. NO. 801/2008 : 2 : 7. SAROGINI, D/O.NARAYANAN, AGED ABOUT 68, CHANAYIL, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. 8. ACHU, S/O.NARAYANAN, AGED ABOUT 63, CHANAYIL, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. 9. RADHA, D/O.NARAYANAN, AGED ABOUT 60, CHANAYIL , EROR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. 10. ASOKAN S/O.KUNJULAKSHMI AGED ABOUT 55, BLAYITHARA PADATH EROOR DESOM, NADAMA VILLAGE. 11. JOSHI, S/O.KUNJULAKSHMI, AGED ABOUT 53 BLAYITHARA PADATH, EROOR DESOM, NADAMA VILLAGE. 12. LAL, S/O.KUNJULAKSHMI, AGED ABOUT 50, BLAYITHARA PADATH, EROOR DESOM, NADAMA VILLAGE. 13. BABU, S/O.KUNJULAKSHMI, AGED ABOUT 53, BLAYITHARA PADATH, EROOR DESOM, NADAMA VILLAGE. 14. M.M.DILEEP. S/O.KUNJULAKSHMI, AGED ABOUT 47, BLAYITHARAPADATH NOW RESIDING AT MURYATH CHETHANA JN., MAMANGALAM, PALARIVATTOM.PO. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== C.R.P. No. 801 of 2008 ========================== Dated this the 5th day of November, 2008. ORDER The petitioner who is the 3rd assignee from the 1st defendant having 1/3 share in a suit for partition filed as O.S. No. 808 of 1969 before the Principal Munsiff's Court, Ernakulam, challenges the dismissal order passed in I.A. No. 8350 of 2008 as per which the petitioner sought a direction to the Advocate Commissioner to hand over the key of the new lock put by the commissioner for locking the gate of the house of the petitioner or in the alternative to take away the new lock and also direct the petitioner to enter her property and conduct agricultural operations therein. 2. The suit filed on 12.12.1969 ripened into a preliminary decree on 22.03.1971. Thereafter, the application for passing of the final decree was filed by the legal heirs of the plaintiff only in the year 2006 as I.A. No. 12116 of 2006. This is because the obligation to pass a final decree was that of the Court. Since there was no move on the part of the court to pass a final decree, C.R.P. No. 801/2008 : 2: the legal representatives of the plaintiffs were constrained to file the said application which is only a reminder to the court to pass a final decree. In the said proceedings, the court appointed an Advocate Commissioner for the purpose of effecting a partition by meats and bounds. Since the Commissioner was not able to enter the portion in possession of the petitioner and open the building therein, the court below had permitted the Advocate Commissioner to break open the lock and enter the building. The Commissioner admittedly broke open the lock and the said portion of the property is now custodia legis. The petitioner had filed another application as I.A. No. 8351 of 2007 for impleading her in the final decree proceedings. The learned counsel for the petitioner submits that the said application has been allowed by the court. What now remains is to effect a partition by meats and bounds and in case the petitioner in equity is entitled to allotment of the portion which the first defendant in the suit would have got as his 1/3 share, the petitioner may have to work out his equity as against the 1st defendant who is her ultimate assignor. The petitioner who is an assignee pendente lite from a C.R.P. No. 801/2008 : 3: sharer has no special right. The court below as per the impugned order has rejected I.A. No. 8350 of 2008 and has directed the Commissioner to effect the partition in accordance with preliminary decree. The advocate Commissioner shall proceed with the work expeditiously and the court below shall make every endeavour to pass a final decree consistent with the preliminary decree after hearing the parties concerned without forgetting the fact that the suit was of the year 1969. Dated this the 5th day of November, 2008. V. RAMKUMAR, JUDGE. rv C.R.P. No. 801/2008 : 4: