IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 WP(C).No. 22538 of 2010(O) -------------------------- IA NOS.4017 & 4018/2008 IN OS.73/1994 of PRINCIPAL MUNSIFF COURT, CHERTHALA .................... PETITIONER(S): --------------- CHELLAPPAN, KALAYAMPADY HOUSE, CHARAMANGALAM, CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): --------------- 1. THANKAMMA, KANNATH, CHARAMANGALAM, MUHAMMA P.O.,CHERTHALA.688525 2. SOBHANA, THAPALUCHIRA, -DO- -DO-, 688525 3. KANAKAMMA, SARANYA BHAVAN, NETHAJI P.O., ARYAD, ALAPPUZHA, 688525. 4. PRASANNA, THAPALUCHIRA, CHARAMANGALAM, MUHAMMA P.O., CHERTHALA, 688525. 5. NATEESA BABU, -DO- -DO-, 688525. ADV. SRI.T.JAYAKRISHNAN FOR R1 TO R5 SRI.K.PREMKUMAR FOR R1TO R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.22538/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF JUDGMENT IN AS NO.52/98 DATED 30.9.2003 OF THE SUB COURT, CHERTHALA. EXT.P2 TRUE COPY OF JUDGMENT IN WP(C) NO.23757/2008 DATED 7/8/2008 EXT.P3 TRUE COPY OF IA NO.4017/2008 DATED 13.11.2008 EXT.P4 TRUE OPY OF IA NO.4018/2008 DATED 13.11.2008 EXT.P5 TRUE COPY OF OBJECTION FILED BY THE FIRST RESPONDENT IN OS 73/1994 DATED 20.12.2008 EXT.P6 TRUE COPY OF ORDER IN IA NO.4017/2008 DATED 1.6.2010 EXT.P7 TRUE COPY OF ORDER IN IA 4018/2008 DATED 1.6.2010 EXT.P8 A TRUE OPY OF ORDER IN IA 1383/2009 DATED 25.5.2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.22538 of 2010 -------------------------------------- Dated this the 19th day of August, 2010. JUDGMENT Defendant No.5 in O.S.No.73 of 1994 of the court of learned Principal Munsiff, Cherthala is the petitioner before me. A preliminary decree for partition of the suit property was passed. Respondent No.1 filed application for passing final decree. While that application was pending petitioner was set exparte on 22.05.2009. In the meantime the Advocate Commissioner inspected property as per order of the court and submitted a report and plan. Petitioner filed I.A.No.4017 of 2008 to set aside that report and plan. That application was dismissed by the learned Munsiff by Ext.P6, order dated 01.06.2010 for the reason that petitioner was set exparte on 22.05.2009. Application for passing final decree was posted for final hearing. Along with I.A.No.4017 of 2008 petitioner had filed I.A.No.4018 of 2008 seeking review of the order posting the application for passing final decree. That application also was dismissed. Those orders are under challenge in this Writ Petition. Since learned counsel for petitioner submitted that exparte order against petitioner was set aside as per Ext.P8, order dated 25.05.2010 on I.A.No.1383 of 2009, a report was called for from the learned Munsiff, Cherthala. Learned Munsiff has reported vide letter dated 24.07.2010 that exparte order against petitioner was set aside on 25.05.2010 but that was not brought to the notice of the learned Munsiff while disposing of I.A.Nos.4017 of 2008 and 4018 of 2008. WP(C) No.22538/2010 2 2. Now it is not disputed that exparte order against petitioner was set aside as per Ext.P8, order dated 25.05.2010. That petitioner remained 'exparte' is the reason for dismissing I.A.Nos.4017 of 2008 and 4018 of 2008. In that circumstances, Exts.P6 and P7, orders cannot be sustained. Resultantly this Writ Petition is allowed and Exts.P6 and P7, orders are set aside. Those applications are remitted to the court of learned Munsiff, Cherthala for fresh disposal as provided under law. Learned Munsiff considering the fact that suit is of the year 1994 and still parties are in the course of application for passing final decree, expedite proceedings in the case. THOMAS P.JOSEPH, Judge. cks