IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 WP(C).No. 25913 of 2010(O) -------------------------- CMA.1/2009 of I ADDL.DISTRICT COURT, ERNAKULAM OS.30/2005 of MUNSIFF COURT, KOLENCHERRRY .................... PETITIONER(S): APPELLANT/PETITIONER - DEFENDANT: ------------------------------------------------------------------------------------- *KESAVAN, S/O RAMAN, KADALIPARAMBIL, PARYARAM KARA, AIKARANADU SOUTH VILLAGE. ( D I E D). *ADDL.P2 TO P5 IMPLEADED: P2. KARTHIKA, W/O.LATE KESAVAN, AGED 70 YEARS, KADALIPARAMBIL HOUSE, MEEMPARA PO, PUTHENCRUZ. P3: INDIRA, D/O.LATE KESAVAN, AGED 39 YERS, KADALIPARAMBIL HOUSE, MEEMPARA PO, PUTHENCRUZ. P4: GOPALAKRISHNAN, S/O. LATE KESAVAN, AGED 35 YEARS, KADALIPARAMBIL HOUSE, MEEMPARA PO, PUTHENCRUZ. P5: SAJEEV, S/O.LATE KESAVAN, AGED 32 YEARS, KADALIPARAMBIL HOUSE, MEEMPARA PO, PUTHENCRUZ. (*ADDL.P2 TO P5 ARE IMPLEADED AS PER ORDER DTD. 22/03/2011 IN I.A.NO.1620/2011 IN WPC.NO.25913/2010) BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE. RESPONDENT(S): RESPONDENTS/RESPONDENTS-PLAINTIFFS: ------------------------------------------------------------------------------------------------ 1. VILASINI VELAPPAN, W/O.LATE VELAPPAN, KADALIPARAMBIL, POOTHRIKA.P.O., AIKKARANADU SOUTH VILLAGE, ERNAKULAM-682 308. Kss ..2/- ..2.... WPC.NO.25913/2010 O 2. VIMAL.K.V., S/O.LATE VELAPPAN, KADALIPARAMBIL, POOTHRIKA.P.O., AIKKARANADU SOUTH VILLAGE, ERNAKULAM-682 308. 3. VEENA.K.V., D/O. LATE VELAPPAN, KADALIPARAMBIL, POOTHRIKA.P.O., AIKKARANADU SOUTH VILLAGE, ERNAKULAM-682 308. R1 & R2 BY ADVS. SRI.SHAJI P.CHALY, SMT.K.S.SUMITHA, SRI.R.SANJITH, SMT.LIJITTA G.MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.25913/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, KOLENCHERRY AS I.A.NO.147/2008 IN OS.NO.30/2005 DTD. 11/04/2008. P2: COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, KOLENCHERRY AS I.A.NO.148/2008 IN O.S.NO.30/2005 DTD. 11/04/2008. P3: COPY OF THE COMMON OBJECTION FILED BY THE RESPONDENTS TO EXHIBITS P1 AND P2 APPLICATIONS DTD. 3/07/2008. P4: COPY OF ORDER DTD. 16/10/2008 PASSED BY THE MUNSIFF'S COURT, KOLENCHERRY DISMISSING I.A.NO.147/2008. P5: COPY OF THE ORDER DTD. 15/10/2008 PASSED BY THE MUNSIFF'S COURT, KOLENCHERRY DISMISSING I.A.NO.148/2008. P6: COPY OF THE JUDGMENT DTD. 30/06/2010 DISMISSING THE APPLICATION IN CMA NO.1/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.25913 of 2010 --------------------------------------- Dated this 14th day of July, 2011 JUDGMENT Petitioner is the defendant in O.S.No.30 of 2005 filed by the respondent before learned Munsiff, Kolencherry for fixation of boundary of the suit property. According to the respondent, the suit property along with other items belonged to the father of petitioner, respondent and others and while so, the father assigned 26cents to the petitioner as his share. After death of the father, other legal heirs including respondent partitioned rest of the property as per document No.3628 of 1992. Respondent wanted the western boundary of the suit property to be fixed. Petitioner remained ex parte when the case was taken up and thereon a decree was passed on 24.01.2008. That was followed by petitioner filing I.A.No.147 of 2008 to set aside the ex parte decree and I.A.No.148 of 2008 to condone the delay of 46 days. Learned Munsiff dismissed those applications as per Exts.P4 and P5, orders. The C.M appeal also ended in dismissal as seen from Ext.P6, judgment. Hence this writ petition filed under Article 227 of the Constitution. Learned counsel requested that petitioner may be given an opportunity to contest the suit. W.P(C).No.25913 of 2010 -: 2 :- 2. Learned counsel for respondent contended that the only objection that petitioner had is that he was not a party to partition deed No.3628 of 1992, he is not bound by the said document and if there is a proper partition of the properties he will get more share than what is assigned to him by his father. It is pointed out that petitioner challenged partition deed No.3628 of 1992 in O.S.No.267 of 1993, that suit was dismissed and the appeal arising therefrom – A.S.No.44 of 1999 was also dismissed. Learned counsel submitted that this writ petition was filed at a time when R.S.A.No.954 of 2004 was pending consideration in this Court. But the second appeal was dismissed on 26.05.2011. If that be so, petitioner has no surviving grievance as regards fixation of boundary as per decree in O.S.No.30 of 2005 so that the decree is to be reopened. 3. I have heard learned counsel on both sides. As per the assignment deed executed by the father, petitioner was given 26 cents. It is not submitted before me that as per the boundary fixed by the trial court, extent of property belonging to the petitioner is reduced. The only challenge, as is submitted before me is based on the pendancy of O.S.No.267 of 1993 and that challenge has come to an end when this Court dismissed W.P(C).No.25913 of 2010 -: 3 :- R.S.A.No.954 of 2004. If that be so, merely for the luxury of a contest, the ex parte decree in O.S.No.30 of 2005 cannot be reopened. Request of petitioner to reopen the decree in O.S.No.30 of 2005 cannot be accepted. This writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-