IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 RFA.No. 753 of 2009() ------------------------------ AGAINST THE ORDER DATED 04/11/2009 IN IA.3132/09 IN OS.423/2007 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT(S): COUNTER PETITIONER NO.1: ------------------------------------------------------------------ SABU VARGHESE, S/O. PAPPACHAN, RESIDING AT PUTHEN VEEDU, PADANAYARKULANGARA SOUTH, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK. BY ADV. SRI.M.P.RAMNATH SRI.P.RAJESH(KOTTAKKAL) RESPONDENT(S): PETITIONERS & COUNTER PETITIONER NO.2: -------------------------------------------------------------------------------------------- 1. T.K. KOCHANDI VAIDYAN, S/O. LATE KOCHUKOSHY VAIDYAN, AGED 63 YEARS, BELLA VISTA (THENGUMVILAYAIL), OPP RAJ BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-3. 2. MRS. ALICE BABU LUKOSE, W/O. BABU LUKOSE KOSHY, AGED 61 YEARS, 35/1345, B5 NAVARATNA, CHAKKUMKAL, PALARIVATTOM, COCHIN - 682 025. 3. JACOB T. KOSHY, S/O. KOCHUKOSHY VAIDYAN, AGED 59 YEARS, THENGUMVILAYIL-2, KIZHAKKEKARA, THEVALAKKARA.P.O. 4. T.K. OOMMUMMEN VAIDYAN, S/O. LATE KOCHUKOSHY VAIDYAN, AGED 57 YEARS, THENGUMVILAYIL, PATTATHANAM.P.O, KOLLAM -21. 5. T.K. THOMAS VAIDYAN, S/O. LATE KOCHUKOSHY VAIDYAN, AGED 51 YEARS, FLAT NO. 125, VAIDYA TOWER, CHINNAKADA, KOLLAM. RFA.No. 753 of 2009 -2- 6. T.K. ALEXANER VAIDYAN, S/O. KOCHUKOSHY VAIDYAN AGED 48 YEARS, 502 B, VALENCIA HEERA NANDANI GARDENS, PAWAI, BOMBAY - 400 076. 7. SAJAN T. KOSHY, AGED 45 YEARS, RESIDING AT THENGUMVILALYIL, KIZHAKKEKARA, THEVALAKKARA.P.O. 8. MRS. RACHEL JOEMON, W/O. JOEMON, AGED 39 YEARS, TLJ HOUSE, JUBILEE ROAD, BAZAR.P.O, ALAPPUZHA. 9. T.K. GEORGE VAIDYAN, S/O. LATE KOCHUKOSHY VAIDYAN, THENGUMVILAYAIL, HOUSE NO.3, MYNAGAPPALLY VILLAGE, THEVALAKKARA. R1 TO R8 BY ADV. SRI.SOJAN JAMES ~CAVEATOR SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) SRI.MAHESH MENON THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ R.F.A.No.753 of 2009-D ---------------------------------------------- Dated, this the 7th day of December, 2009 J U D G M E N T K.M.Joseph, J. Appellant challenges the order passed allowing a petition filed by respondents 1 to 8 under Order 38 Rule 8 read with Order 21 Rule 58 CPC. We heard the learned counsel appearing on behalf of the parties. The impugned order reads as under: “Prays for objection. Prayer rejected as N.F.T was ordered. So petition is allowed subject to the deposit of Rs.1,00,000/- or sufficient security. For compliance to 4.12.2009.” 2. According to the appellant, the claim petition was first posted before the Sub Court on 13.10.2009. The counsel for the appellant sought time for filing objection to the petition. The case was posted to 4.11.2009. It is the case of the appellant that he could not file objection to the application as he was in Bangalore in connection with the death of a RFA 753/2009 -2- relative. He filed I.A.3750/2009 stating the reason for not being able to file objection. The court below did not grant time, and, it is stated that the order is passed as aforesaid. The plaint claim, according to the appellant as on date is more than Rs.25 lakhs. Learned counsel for respondents 1 to 8 would contend that the case was posted twice. He would further contend that the attempt of the appellant is to see that respondents 1 to 8 are disabled from effecting partition on the basis of attachment of 1/9th share of the 9th respondent/sole defendant. It is submitted that copy of the petitions were not served on respondents 1 to 8. He would further submit that actually Rs.1 lakh is shown in the order because the value of the property was shown as Rs.50,000/-. He further submits that respondents may be permitted to partition the property and he further submits that 1/9th share will be allotted to the 9th respondent/sole defendant. 3. When a claim petition is filed under Order 38 Rule 8 it is to be disposed of under Order 21 Rule 58. The application filed by respondents 1 to 8 was to lift the attachment or to permit them to execute the partition. Since RFA 753/2009 -3- the prayer for further grant of time was rejected the petition to lift attachment was allowed. In this case, we notice that the petition is allowed for the reason that no further time was granted. Proceeding on the basis that there is some laches on the part of the appellant we feel that substantial interest of justice requires there must be adjudication in respect of the matter as is contemplated in law. We also feel that respondents 1 to 8 should be permitted to seek partition by reserving the due share of 9th respondent. This they can do by means of producing a draft partition in which the appellant can raise his objections also. But the order allowing the appeal cannot be an unconditional order. Accordingly, the appeal is allowed and the impugned order is set aside on condition that the appellant pays Rs.4,000/- as costs to the counsel for respondents 1 to 8 in this Court and produces a memo to that effect within two weeks from today. Upon the cost being paid, I.A.No.3132/2009 filed by respondents 1to 8 will be taken up and decided by the Sub Court, Kollam, in accordance with law as early as possible and at any rate on or before 31.1.2010. RFA 753/2009 -4- We make it clear that it will be open to respondents 1 to 8 to produce draft of the proposed partition between the sharers before the court in which case the appellant will be given opportunity to raise his objections to the said application and appropriate orders may be passed by the Sub Court, Kollam in accordance with law. In case the appellant does not pay the costs the appeal will stand dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS In compliance with the direction in the judgment dated 7.12.09, the Appellant's counsel has paid Rs.4,000/- (Four thousand Rupees only) as cost to the counsel for respondents 1 to 8 in the High Court (vide memo dated 10.12.2009, cf 6053/09)