IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 CRP.No. 193 of 2010() --------------------- CMA.119/2008 of I ADDL.DISTRICT COURT, ERNAKULAM OS.86/2006 of I ADDL.M.C.,ERNAKULAM .................... REVN. PETITIONERS: --------------------- 1. DEVAKI, AGED 62, W/O.LATE KOCHAPPAN RESIDING AT 7/144 OF TRIPUNITHURA MUNCIPALITY EROOR DESOM, NADAMA VILLAGE,KANAYANNUR TALUK. 2. SUNITHA P.K, AGED 36,W/O.RANISH KALATHIL VEEDU, EDAVILANGU PO, KARA EDAVILANGU EDAVILANGU VILLAGE, KODUNGALLUR TALUK. 3. MINI, AGED 34, W/O.DILEEP RESIDING AT 144 OF TRIPUNITHURA MUNCIPALITY EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.B.JAYASANKAR RESPONDENTS: --------------- 1. P.A.SINI, AGED 30, W/O.LATE SABU D/O.ANIRUDHAN, PULITHARA NIKERTHIL HOUSE CHELIKKAVATTAM, VENNALA , EDAPPALLY SOUTH VILLAGE 2. P.S.SARUN, S/O.LATE SABU, D/O.ANIRUDHAN,PULITHARA NIKERTHIL HOUSE, CHELIKKAVATTAM, VENNALA, EDAPPALLY SOUTH VILLAGE. ADV. SRI.P.T.SEBASTIAN FOR R1,2 SRI.K.M.SUBIAR FOR R1,2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.193 of 2010 --------------------------------------- Dated this 03rd day of June, 2010 ORDER Defendants in O.S.No.86 of 2006 of the court of learned Additional Munsiff, Ernakulam are the petitioners before me, challenging judgment of learned Additional District Judge-I, Ernakulam in C.M.A.No.119 of 2008 confirming dismissal of I.A.Nos.7310 of 2008 and 7311 of 2008 to set aside the ex parte decree against them and to condone the delay of 322 days. According to the petitioners they had entrusted the case to a counsel who entered appearance for them, but he did not contest the case. Petitioners learned about the ex parte decree only when the Advocate Commissioner inspected the property for division. Courts below were not impressed by the contentions raised by petitioners and accordingly the prayer to set aside the ex parte decree was dismissed. Learned counsel for petitioners contend that their only dispute to the prayer for partition is regarding the share to be allotted to the respondents. According to the learned counsel respondents are entitled only to get 2/3rd of the 1/ 4th share in the suit property while ex parte decree gives them 1/4th share in C.R.P.No.193 of 2010 : 2 : the entire property of respondent No.1. Learned counsel for respondents contends that a final decree was passed and execution has been launched. Advocate Commissioner visited the property several times. It is in the above circumstances court below did not allow the prayer to set aside the ex parte decree. 2. Dispute between the parties as the learned counsel for petitioner has stated is regarding the share to be allotted to the respondents. Learned counsel states that on no other point, petitioners have any objection to the partibility of the property. It is only in the matter of share that petitioners have dispute. Having regard to the facts and circumstances of the case I am inclined to allow the request and set aside the ex parte decree. Minor latches are to be corrected by common curative of cost. Hence I am inclined to allow the petition on condition that petitioners paid to the respondents through their counsel Rs.5000/- within three weeks from this day. Resultantly this revision is allowed on condition that petitioners paid to the respondents through their counsel Rs.5,000/- (Rupees Five Thousand Only) as cost within three weeks from today. In case the condition is complied the ex parte decree in challenge will stand set aside. In case of non compliance, this C.R.P.No.193 of 2010 : 3 : revision petition will stand dismissed in confirmation of the judgment/order under challenge. Call after three weeks. (THOMAS P JOSEPH, JUDGE) Sbna/-