IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 OP(C).No. 1143 of 2010(O) ------------------------- IA NO.842/2010 IN FDIA NO.1348/2009 IN OS.24/2001 of MUNSIFF COURT, VADAKARA .................... PETITIONER/IST RESPONDENTIN IA 842/2010 --------------------------------------------- P.REVATHY, D/O.KANNAN, AGED 70 YEARS, PULAYAR VAYALIL HOUSE, ONCHIYAM AMSOM DESOM, P.O.ONCHIYAM. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT(S): RESPONDENTS 10 TO 14 AND PETITIONER IN IA 842/2010 -------------------------- 1. BARATHAN, S/O.KANNAN, PUTHIYADATHIL HOUSE, P.O.MUTTUNGAL, VIA. VADAKARA, KOZHIKODE DISTRICT, PIN-673101. 2. RADHA, W/O.LATE RAGHAVAN, PUTHIYADATHIL HOUSE, P.O.MUTTUNGAL, VIA. VADAKARA, KOZHIKODE DISTRICT, PIN-673101. 3. LEENA, D/O.LATE RAGHAVAN, PUTHIYADATHIL HOUSE, P.O.MUTTUNGAL, VIA. VADAKARA, KOZHIKODE DISTRICT, PIN-673101. 4. RAJINA, D/O.LATE RAGHAVAN, PUTHIYADATHIL HOUSE, P.O.MUTTUNGAL, VIA. VADAKARA, KOZHIKODE DISTRICT, PIN-673101. 5. RAJESH, S/O.LATE RAGHAVAN, PUTHIYADATHIL HOUSE, P.O.MUTTUNGAL, VIA. VADAKARA, KOZHIKODE DISTRICT, PIN-673101. 6. SASI, S/O.KRISHNAN, PUTHIYADATHIL HOUSE, P.O.MUTTUNGAL, VIA. VADAKARA, KOZHIKODE DISTRICT, PIN-673101. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1143 of 2010 -------------------------------------- Dated this the 14th day of December, 2010. JUDGMENT Challenge is to Ext.P5, order passed by learned Munsiff. Vadakara on I.A.No.842 of 2010 in FDIA No.1348 of 2009 in O.S.No.24 of 2001. Pursuant to the preliminary decree petitioner and others applied for passing of final decree vide FDIA No.490 of 2007 and on that application Advocate Commissioner inspected the property and submitted reports and plans showing various modes of division of the property. At that stage, FDIA No.490 of 2007 was dismissed for non-prosecution. Petitioner and others later filed FDIA No.1348 of 2009 for passing final decree and applied for the issue of Advocate Commission. In the meantime, a third party claiming to be the assignee from defendant No.2 filed I.A.No.842 of 2010 (Ext.P3) requesting that mode No.2 in the report dated 12.09.2007 submitted by the Advocate Commissioner in FDIA No.490 of 2007 may be adopted and plot C in the second plan (allotted to defendant No.2) may be allotted to him being the assignee from defendant No.2. That application was opposed by petitioner and others (Ext.P4 is the objection). There was also an application for issue of a fresh commission. Learned Munsiff observed that though FDIA No.490 of 2007 was dismissed for non-prosecution since it is a proceeding in final decree, on filing FDIA No.1348 of 2009 the records already in the final decree proceedings could be taken into consideration and that the reports and plans submitted by the Advocate Commissioner could be taken into OP(C) No.1143/2010 2 account, leaving it open to the parties to prefer their objections to the said reports and plan so that, court could conduct an enquiry and pass appropriate orders. That order is under challenge. Learned counsel contends that since FDIA No.490 of 2007 was dismissed for non-prosecution, reports and plans obtained in the said proceedings cannot be looked into and hence a fresh commission, report and plan are necessary. It is also pointed out by the learned counsel that petitioner and others are not able to prefer objections to the earlier reports and plans as those reports and plans are obtained on FDIA No.1348 of 2009 which was dismissed for default. 2. I am unable to accept the argument of the learned counsel. Once the preliminary decree is passed, proceedings are adjourned sine die. Mere fact that FDIA No.490 of 2007 for passing final decree was dismissed for non- prosecution does not mean that reports and plans obtained in that proceedings are washed out. Those records continued to be the part of final decree proceedings and can be made use of as pointed out by the learned Munsiff. Learned Munsiff has made it clear that an enquiry into the matter is necessary after parties preferred their objections to the reports and plans submitted by the Advocate Commissioner. Grievance of petitioner that she is not able to prefer objection is also not without any merit. Petitioner can refer to the date of the OP(C) No.1143/2010 3 reports and plans and prefer her objection, if any. Having gone through Ext.P5, order under challenge and heard learned counsel I do not find reason to interfere. Petition is dismissed. THOMAS P.JOSEPH, Judge. cks