IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 WP(C).No. 8432 of 2009(O ) CMA.16/2008 of ADL.SUB COURT, THALASSERY OS.481/1996 of MUNSIFF COURT, THALASSERY PETITIONER: --------------- BANKANTAVIDA MARIYATH,D/O.ABDUL KHADER, AGED,50 YEARS,OCCUPATION NIL, RESIDING OF RUKHIYA MANZIL, KANNUR.I AMSOM NEERCHAL DESOM, KANNUR TALUK & DISTRICT. BY ADV. SRI.RAJESH NAMBIAR RESPONDENTS: --------------- 1. PUNNATHIL KUNNUMBRATH KAMALA, W/O.GOVINDAN, AGED 72 YEARS, OCCUPATION NIL, RESIDENT OF EDAKKD AMSOM KIZHUNNA DESOM, KANNUR TALUK AND DISTRICT. 2. PUNNTHIL KUNNUMBRATH BABY KANAKAM, D/O.GOVINDAN, AGED 42 YEARS, OCCUPATION NIL RESIDENT OF EDAKKAD AMSOM KIZHUNNA DESOM, KANNUR TALUK AND DISTRICT. 3. PUNATHIL KUNNUMBRATH PRADEEPKUMAR S/O.GOVINDAN, AGED 40 YEARS, OCCUPATION NOT KNOWN, RESIDENT OF EDAKKAD AMSOM KIZHUNNA DESOM, KANNUR TALUK AND DISTRICT. 4. PUNATHIL KUNNUMBRATH SATHYABHAMA, D/O GOVINDAN, AGED 38 YEARS, OCCUPATION NIL RESIDENT OF EDAKKAD AMSOM KIZHUNNA DEOM, KANNUR TALUK AND DISTRICT. 5. PATTAYATHIL KUNNUMBRATH KALLU, D/O.RAMAN, AGED 87 YEARS, OCCUPATION NIL, RESIDENT OF POYIL HOUSE, EDAKKAD AMSOM KIZHUNNA DESOM, KANNUR TALUK AND DISTRICT. 6. V.K.MYTHILIL, D/O. KANNAN, AGED 78 YEARS OCCUPATION NIL, RESIDENT OF KAKKT, PUZHATHI AMSOM KAKKAT DESOM, KANNUR TALUK AND DISTRICT. 7. V.K.JANAKI, D/O KANNAN, AGED 76 YEARS, OCCUPATION NIL, RESIDENT OF VANIYANKANDY HOUSE, AD AKKAD AMOM CHALA PANDRANDUKANDY DESOM, KANNUR TALUK AND DISTRICT. 8. V.K.MEENASHI, D/O.KANNAN, AGED 74 YEARS, OCCUPATION NIL RESIDENT OF CHALIL VEEDU, CHEMBILODE AMSOM THANNADA DESOM, P.O.CHALA EAST, KANNUR TALUK AND DISTRICT. 9. V.K.GOVINDAN,S/O.KANNAN, AGED 71 YEARS, COOK, RESIDENT OF VANIYANKANDY HOUSE EDAKKAD AMSOM CHALA PANDRANDUKANDY DESOM, KANNUR TALUK AND DISTRICT. 10. V.K.NARAYANAN, S/O.KANNAN, AGED 69, TAILOR, RESIDENT OF VANIYANKANDY HOUSE, EDAKKAD, AMSOM CHALA PANDRANDUKANDY DESOM,KANNUR TALUK AND DISTRICT. 11. K.P.DEVU, D/O.PANJU,AGED 77 YEARS, OCCUPATION NIL,RESIDENT OF RAYAROTH VEEDU, CHEMBILODE AMSOM CHALA KIZHAKKEKKARA DESOM, KANNUR TALUK AND DISTRICT. 12. K.P. SAROJINI D/O.PANJU AGED 65 YEARS, OCCUPATION NIL, RESIDENT OF CHARUKANNAN'S HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, KANNUR TALUK AND DISTRICT. 13. K.P. GANGADHARAN, S/O.PANCHU, AGED 62 YEARS, ENGINEER, RESIDENT OF AMRUTHA, CHEMBILODE AMSOM, CHALA KIZHAKKEKKARA DESOM, KANNUR TALUK AND DISTRICT. 14. K.V.DAMAYANTHY, W/O.KARUVAN, AGED 72 YEARS, OCCUPATION NIL, RESIDENT OF K.V.HOUSE, MAVILAYI AMSOM DESOM, KANNUR TALUK AND DISTRICT. 15. K.V.SURESHAN,S/O.KARUVAN, AGED 54 YEARS, OCCUPATION NOT KNOWN,RESIDENT OF K.V.HOUSE, MAVILAYI AMSOM DESOM, KANNUR TALUK AND DISTRICT. 16. K.V.SUMESH BABU,S/O.KARUVAN, AGED 38 YEARS, OCCUPATION NOT KNOWN, RESIDENT OF K.V.HOUSE,MAVILAYI AMSOM, DESOM, KANNUR TALUK AND DISTRICT. 17. K.V.SUDHEESH, S/O.KARUVAN, AGED 37 YEARS, OCCUPATION NOT KNOWN, RESIDENT OF K.V.HOUSE,MAVILAYI AMSOM, DESOM, KANNUR TALUK AND DISTRICT. 18. RAYAROTH LAKSHMI, W/O.ACHUTHAN, AGED 70 YEARS, OCCUPATION NIL RESIDENT OF K.V.HOUSE,MAVILAYI AMSOM, DESOM, KANNUR TALUK AND DISTRICT. 19. RAYAROHTH USHAVATHY D/O.ACHUTHAN, AGED 46 YEARS, OCCUPATION NIL, RESIDENT OF OF K.V.HOUSE, MAVILAYI AMSOM DESOM, KANNUR TALUK AND DISTRICT. 20. RAYAROTH UMA BABY D/O.ACHUHTHAN, AGED 41 YEARS, OCCUPATION NIL, RESIDENT OF K.V.HOUSE MAVILAYI AMSOM DESOM KANNUR TALUK AND DIST. 21. RAYAROTH OMANA D/O. ACHUTHAN, AGED 38 YEARS, OCCUPATION NIL, RESIDENT OF K.V.HOUSE, MAVILAYI AMSOM DESOM, KANNUR TALUK AND DIST. 22. RAYAROTH NALINI D/O.ACHUTHAN, AGED 36 YEARS, OCCUPATION NIL, RESIDENT OF K.V.HOUSE, MAVILAYI AMSOM DESOM, KANNUR TALUK AND DIST. 23. RAYAROTH SHEEBA, D/O. ACHUTHAN, AGED 34 YEARS, OCCUPATION NIL, RESIDENT OF K.V.HOUSE, MAVILAYI AMSOM DESOM, KANNUR TALUK AND DIST. 24. RAYAROTH SHEENA, D/O.ACHUTHAN, AGED 32 YEARS, OCCUPATION NIL, RESIDENT OF K.V.HOUSE, MAVILAYI AMSOM DESOM, KANNUR TALUK AND DIST. 25. VINODAN KAVULLA VEETTIL S/O.K.V.MADHAVAN, AGED 39 YEARS, RESIDENT OF KAVULLA VEETTIL HOUSE EDAKKAD AMSOM AND KIZHUNNA DESOM OF KANNUR TALUK & DISTRICT. THROUGH HIS P.A. HOLDER KARTHIYAYANI.K.V. D/O.KANNAN.K.P. AGED 59 YEARS, RESIDENT OF KAVULLA VEETTIL HOUSE, EDAKKAD AMSOM KIZHUNNA DESOM OF KANNUR TALUK AND DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2009, ALONG WITH W.P.(C) NO.8473 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) Nos. 8432 & 8473 OF 2009 O ------------------------------------------------------ Dated this the 17th March, 2009 JUDGMENT The petitioner is defendant No.21 in O.S.No.481 of 1996, on the file of the Court of the Munsiff of Thalassery. The suit was filed for partition. The petitioner was not made a party originally. He is an assignee from the first defendant. He was impleaded as additional 21st defendant. A preliminary decree was passed on 6.2.2001. The petitioner was set exparte as he did not appear. 2. On 12.10.2003, the petitioner filed I.A.No.1909 of 2004 and 1910 of 2004 to set aside the exparte decree and to condone the delay of 1313 days in filing the application to set aside the exparte decree. The trial court originally allowed those applications on payment of cost of Rs.500/-. That order was challenged in W.P.(C) No.16297 of 2007. This Court allowed the Writ Petition and remanded the case to the trial court for fresh consideration of the interlocutory applications. Thereafter, the court below dismissed the applications by the common order dated 11.2.2008, which is under challenge in these Writ Petitions, the petitioner having filed separate Writ Petitions challenging the order in the two interlocutory applications. W.P.(C) NOS.8432 AND 8473 OF 2009 :: 2 :: 3. The petitioner is an assignee from the first defendant. The court below has stated that the case put forward by the petitioner that he was not duly served with notice is not correct. This finding was arrived at after verifying the entire records as directed by this Court in W.P.(C) No.16297 of 2007. The petitioner did not appear before the court and he was set exparte. Only after a delay of 1313 days, the petitioner filed an application to set aside the exparte decree. The court below, on consideration of the entire facts and circumstances of the case, held that no grounds are made out for condoning the long delay. Accordingly, the petition for condonation of delay was dismissed and consequently, the application to set aside the exparte decree was also dismissed. The findings rendered by the court below are findings of fact. I do not think that this Court would be justified in invoking jurisdiction under Article 227 of the Constitution of India, in the facts and circumstances of the case. 4. It is also to be noted that the petitioner being an assignee from a sharer of a portion of the plaint schedule property, could protect his interests in the final decree proceedings. It is not necessary to set aside the preliminary decree to work out the equitable remedies by the petitioner. It is not clear from the orders whether the petitioner has resorted to any such remedies. Any how, at this belated stage, it is not W.P.(C) NOS.8432 AND 8473 OF 2009 :: 3 :: proper to permit the petitioner to re-open a preliminary decree which was passed in 2001 in a suit instituted in the year 1996. For the aforesaid reasons, the Writ Petitions are dismissed. (K.T.SANKARAN) Judge ahz/