IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 CRP.No. 52 of 2010() -------------------- AGAINST THE ORDER DATED 21/10/2009 IN IA.66/09 IN OS.128/2002 of SUB COURT, PATHANAMTHITTA .................... REVN. PETITIONER(S): PETITIONER/DEFENDANT ----------------------------------------- SIVARAMAN NAIR,AGED 65 YEARS, S/O.VELU PILLAI,MULLAPLACKAL HOUSE,THUPAMON NADUVILA MURI,PANDALAM THEKKAKARA VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.A.CHACKO SRI.SANTHOSH P.ABRAHAM SMT.C.M.CHARISMA RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- LEKSHMIKUTTY AMMA,AGED 52 YEARS, W/O.BALAKRISHNAN,THUPAMON NADUVILA MURI, PANDALAM THEKKAKARA VILLAGE,PATHANAMTHITTA DIST. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------- C.R.P. NO. 52 OF 2010 -------------------------------------------- Dated this the 2nd February, 2010 ORDER The defendant in O.S. No. 128 of 2002 on the file of the Sub Court, Pathanamthitta is the Revision Petitioner. The said suit instituted by the respondent herein who is his sister, was one for partition and separate possession of the plaintiff's half share over 50 cents of land with a residential building thereon. The plaintiff claimed half share over the land as well as the building thereon. On 5-10-2002, an ex parte preliminary decree was passed as prayed for . Thereafter the respondent/plaintiff filed I.A. No. 1248 of 2004 for the passing of a final decree. In the final decree proceedings the court below issued a commission. The Commissioner filed a report and account as per which it was suggested to allot the entire building and 19.5 cents of land to the plaintiff and 33 cents of land to the petitioner/defendant without any portion of the building. Since the petitioner/defendant was ex parte and he did not file any objection to the Commissioner's report the court below passed a final decree as suggested by the Commissioner on 22-1-2008. Thereafter the petitioner filed I.A. 66 of 2009 seeking a review of the final decree. Since the Review C.R.P. NO. 52 OF 2010 -:2:- Petition was filed out of time he also filed I.A. 67 of 2009 to condone the delay of 338 days in filing the petition. The Court below passed the impugned common order dated 21-10-2009 condoning the delay but dismissing the review petition holding that the petitioner did not object to the report of the Commissioner suggesting the allotment made in the final decree. Hence, this Civil Revision Petition. 2. The court below cannot be faulted in saying that the final decree passed on 22-1-2008 does not suffer from any error apparent on the face on record. The petitioner chose to remain ex parte both in the suit as well as in the final decree proceedings. Hence, he did not file any objection to the report of the Advocate Commissioner deputed in the final decree proceedings. It is true that since the plaintiff claimed half share over the entire property including the house the defendant might have been misled by assuming that the plaintiff would stick on to her stand in the final decree proceedings and might have expected to get a share in the building as well. That may be the reason why he remained ex parte. But the fact remains that the final decree has been passed accepting the recommendation of the Commissioner without any demur from the side of the petitioner. Hence, the remedy of the petitioner is to file an appeal against the final decree. He was C.R.P. NO. 52 OF 2010 -:3:- evidently prosecuting the review petition under the bona fide belief that review was his remedy. Under these circumstances, I am not inclined to interfere with the impugned order passed by the court below. The petitioner may file an appeal if so advised against the final decree. In case he files an appeal against the final decree within two weeks from today, and files an application to condone the delay in filing the appeal, all further proceedings in execution of the final decree shall be kept in abeyance till the disposal of the application to condone the delay in such appeal. The petitioner will not be entitled to the benefit of this order if he does not file an appeal within the time of two weeks as stipulated above V. RAMKUMAR, JUDGE. ani/