IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 OP(C).No. 2994 of 2011(O) ----------------------------------------- IA.2504/2003 IN OS.398/1988 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONERS/ADDITIONAL DEFENDANTS 9 TO 12 --------------------------------------------------------------------------- 1. KUTTY, W/O.KITTAN, MANNANETHU, EREZHA, VADAKKUMMURI, KANNAMANGALAM VILLAGE. 2. CHELLAPPAN, S/O.KITTAN, MANNANETHU, EREZHA, VADAKKUMMURI, KANNAMANGALAM VILLAGE. 3. THANKAPPAN KITTAN, S/O.KITTAN, MANNANETHU, EREZHA, VADAKKUMMURI, KANNAMANGALAM VILLAGE. 4. DIVAKARAN KITTAN, S/O.KITTAN, MANNANETHU, EREZHA, VADAKKUMMURI, KANNAMANGALAM VILLAGE. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT(S): ------------------------- 1. RAMAN RAGAVAN, VALLIATHU VEETTIL, PELA MURI, KANNAMANGALAM VILLAGE, FROM MANNAAANETHU EREZHA, VADAKKUMMURI, KANNAMANGALAM VILLAGE, KANNAMANGALAM, PIN-690109. OP(C) NO.2994/2011 2. POULOSE KUNJU, VALLIATHU VEETTIL, PELA MURI, KANNAMANGALAM VILLAGE, FROM MANNAAANETHU EREZHA, VADAKKUMMURI, KANNAMANGALAM VILLAGE, KANNAMANGALAM, PIN-690109. 3. KUTTI THANKAMMA, VALLIATHU VEETTIL, PELA MURI, KANNAMANGALAM VILLAGE, FROM MANNAAANETHU EREZHA, VADAKKUMMURI, KANNAMANGALAM VILLAGE, KANNAMANGALAM, PIN-690109. 4. KUTTY RAVI, S/O.KUTTY THANKAMMA, VALLIATHU VEETTIL, PELA MURI, KANNAMANGALAM VILLAGE, FROM MANNAAANETHU EREZHA, VADAKKUMMURI, KANNAMANGALAM VILLAGE, KANNAMANGALAM, PIN-690109. 5. KUTTY REGHU, S/O.KUTTY THANKAMMA, VALLIATHU VEETTIL, PELA MURI, KANNAMANGALAM VILLAGE, FROM MANNAAANETHU EREZHA, VADAKKUMMURI, KANNAMANGALAM VILLAGE, KANNAMANGALAM, PIN-690109. 6. KUTTY REMA, D/O.KUTTY THANKAMMA, VALLIATHU VEETTIL, PELA MURI, KANNAMANGALAM VILLAGE, FROM MANNAAANETHU EREZHA, VADAKKUMMURI, KANNAMANGALAM VILLAGE, KANNAMANGALAM, PIN-690109. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.2994/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF THE IA.2504/2003 IN OS.398/1988 DATED 15/7/2003. EXT.P2 TRUE COPY OF THE APPLICATION FOR STAY VIDE IA.655/2011 DATED 22/3/2011. EXT.P3 TRUE COPY OF THE JUDGEMENT DATED 27/3/1991 IN OS.398/1988 OF THE HON'BLE MUNSIFF COURT AT MAVELIKKARA. EXT.P4 TRUE COPY OF THE COMMON OBJECTION AGAINST IA.2504/2003 AND IA.655/2011. EXT.P5 TRUE COPY OF THE ORDER DATED 3/8/2011 IA.2504/2003 IN OS.398/1988. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2994 of 2011 --------------------------------------- Dated this 22nd day of September, 2011 JUDGMENT First respondent appears through counsel. Other respondents, I am told support petitioners. 2. The challenge is to Ext.P5, order passed by the learned Munsiff, Mavelikkara refusing to pass a supplementary preliminary decree as prayed for, in I.A.No.2504 of 2003 in a suit for partition filed in the year 1988 (O.S.No.398 of 1988). The preliminary decree was passed on 27.03.1991 followed by a final decree. The execution petition was filed in the year, 1999 and while the execution petition was pending, petitioner filed I.A.No.2504 of 2003 to pass supplementary preliminary decree stating various grounds. That application was dismissed by the impugned order which is sought to be challenged invoking the power under Art.227 of the Constitution. 3. When the matter came up for admission, I heard learned counsel for petitioners and the first respondent on the maintainability of the original petition since an appeal appeared to be the proper remedy against Ext.P5, order refusing to pass a supplementary preliminary decree. O.P(C).No.2994 of 2011 -: 2 :- 4. Learned counsel for petitioners has brought to my notice the decision of this Court in Perumal Vadyar and Ors. Vs. Devi and Ors. (1991(1) KLJ 65) where, the trial court refused to pass supplementary preliminary decree, that was not interfered with in appeal and appellate judgment was challenged in revision. In paragraph 17, learned Judge after referring to the decision of the Apex Court held that revision against the order of the court below refusing to adjudicate on the rights of the revision petitioners to get a supplementary preliminary decree is not maintainable. 5. That decision must apply with added vigor in the present case since without even resorting to the remedy by way of appeal, petitioners have challenged Ext.P5, order under Art.227 of the Constitution. When a remedy by way of appeal is provided, it is not for this Court to interfere invoking Art.227 of the Constitution unless it is shown that the order under challenge is patently illegal and this Court is required to interfere in exercise of its power under Art.227 of the Constitution. 6. That, if an appeal is preferred, there would be delay in filing the appeal is not a ground why this Court should interfere with this original petition. Having regard to the circumstances O.P(C).No.2994 of 2011 -: 3 :- and in the light of the decision referred above, I hold that remedy available to the petitioners against Ext.P5, order is an appeal as provided under law. This original petition is disposed of with the above observation. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-