IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 RSA.No. 750 of 2008() --------------------- AS.152/2001 of SUB COURT,NEYYATTINKARA OS.1498/1990 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT/APPELLANT/2ND DEFENDNAT: ------------------------------------------------- KUMARA PILLAI SUDHAKARAN, KAKKARA THACHANVILA VEEDU, HAVING ALSO AYANIYARATHALA VEEDU, AYIRAYIL DESOM, KARODU VILLAGE. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENT/RESPONDENT/PLAINTIFF 2,3 AND 5 TO 7 AND DEFENDANTS 3 TO 7 --------------------------------------------------------------------- 1. NARAYANA PILLAI VELAPPAN NAIR UPPUTHANATHU VADAKKE VEEDU AYIRAYIL DESOM, KARODU VILLAGE 2. PANKAJAKSHY AMMA OMANA AMMA OF DO.DO. 3. RAJENDRANKURUPPU RAJASEKHARAN OMANA MANDIRAM, AYIRAYIL DESOM, PARASSALA, KARODE VILLAGE 4. RAJENDRAKURUPPU RAJESH OF DO.DO. 5. RAJAMMA RAJITHA OF DO.DO. 6. PANKAJAKSHI AMMA SUKUMARI AMMA, BINDHU BHAVAN, PLANKALAMUKKU MOOLAKONAM, NEMOM FROM UPPUTHANATHU VADAKKE VEEDU AYIRAYIL DESOM, KARODE VILLAGE R.S.A.N O. 750/2008 : 2 : 7. KUMARA PILLAI MADHAVAN NAIR, KAKKARA THACHANVILA VEEDU AYIRAYIL DESOM, KARODE VILLAGE. 8. MAHESWARAN NAIR, S/O.KUMARA PILLAI, OF DO.DO. 9. KUMARA PILLAI BALAN OF DO. 10. KARTHIYANI PILLAI. THANKAMMA OF DO.DO. ADV. SRI.A.MOHAMED MUSTAQUE FOR R1 & 6 SRI.KAUSER EDAPPAGATH FOR R1 & 6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 750 of 2008 ========================== Dated this the 30th day of October, 2008. JUDGMENT The 2nd defendant in O.S. No. 1498 of 1990 on the file of the Principal Munsiff's Court, Neyyattinkara is the appellant in this Second Appeal. The said suit was one for redemption and partition. The trial court passed a preliminary decree. Thereafter, the plaintiff filed an application for the passing of the final decree as I.A. No. 539 of 1992. That application was dismissed for default on 25.05.1995. Thereafter, within six days of dismissal of the said application, the plaintiff filed I.A. No. 2149 of 1995. The second application for the passing of the final decree was vehemently opposed by the appellant and other contesting defendants stating that the said application was not maintainable and was barred by resjudicata and was also time barred by applying Article 137 of the Limitation Act. The courts below concurrently rejected the objection stating that the second application could be treated as the continuation of the first application and if so, there was no defect in the second R.S.A.No. 750/2008 : 2: application. It is these orders which are challenged in this Second Appeal. 2. The learned counsel appearing for the appellant/defendant made the following submissions before me in support of the appeal:- The first application for passing of the final decree filed as I.A. No. 539 of 1992 was dismissed on 25.05.1995. Since no limitation is prescribed, the residuary provision under Section 137 of the Limitation Act will apply and the second application should have been filed within three years. That apart, the dismissal of the earlier application would operate as res judicata. 3. I am afraid that I cannot agree with the above submissions. The law does not contemplate the filing of an application for passing of the final decree. After the passing of the preliminary decree when the suit is adjourned sine die, it is the obligation of the court to pass the final decree. The law does not contemplate an application by any of the sharers for the passing of a final decree. When any of the sharers apply for the passing of a final decree, it is only a reminder to the court about R.S.A.No. 750/2008 : 3: its obligation to pass a final decree. Since no application is contemplated for the same, there cannot be any limitation even by resort to Article 137 of the Limitation Act. The contentions raised by the appellant and others were rightly rejected by the courts below. No question of law much less any substantial question of law arises for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 30th day of October, 2008. V. RAMKUMAR, JUDGE. rv R.S.A.No. 750/2008 : 4: V. RAMKUMAR , J. ========================== C.M.A. No. 618 of 2008 in R.S.A. No. 750 of 2008 ========================== Dated this the 30th day of October, 2008. O R D E R This is a petition to condone the delay of 497 days in filing the appeal. The reason for the delay is on medical grounds in respect of which a medical certificate has also been produced by the appellant. Even though the respondents have been served, they have not chosen to enter appearance or file a counter. Having regard to the averments in the affidavit in support of the petition, the delay is condoned. Dated this the 30th day of October, 2008. R.S.A.No. 750/2008 : 5: V. RAMKUMAR, JUDGE. rv