IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 9029 of 2009(O) ------------------------- AGAINST THE ORDER DATED 31/10/2006 IN OS 605/05 IN OS.165/2006 of PRL.MUNSIFF COURT, KOCHI EP 19/09 IN OS NO.165/06 OF MUNSIFF COURT, KOCHI .................... PETITIONER(S): --------------- SURESH BABU,AGED 55 YEARS, S/O.RAMAKRISHNAN,VATTATHARA HOUSE, NARACKAL P.O.,VYPIN,ERNAKULAM. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENT(S): --------------- GEETHA SANTHOSH,W/O.SANTHOSH, AGED 38 YEARS,NOTTACHAL, VELIYAKATHU HOUSE,NARACKAL P.O., VYPIN. ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, ALONG WITH CRP NO. 220 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- C.R.P.No.220 of 2009 & W.P.(C).No.9029 of 2009 ------------------------------------ Dated this the 31st day of March, 2009 ORDER The parties in the Writ Petition as well as the C.R.P. are the same. These cases are being disposed of since common questions are involved in these cases and as agreed to by the learned counsel appearing for all the parties. 2. The respondent, Geetha Santhosh instituted O.S.No.165 of 2006 for partition claiming the 1/4th share in the plaint schedule property. A preliminary decree was passed on 31.10.2006 declaring that the plaintiff is entitled to 1/4th share. It was also held that the defendant (Suresh Babu who is the petitioner in the Writ Petition and in the C.R.P.) would be entitled to 3/4th share. The trial court also directed in the preliminary decree that the allotment shall be made in such a way that the residential house shall be included in the share of the defendant. 3. Challenging the preliminary decree, the defendant filed A.S.No.23 of 2007 on the file of the court of Subordinate Judge of Kochi. Pending appeal, final decree proceedings were initiated by CRP 220/2009 & WPC No.9029/2009 2 the plaintiff. Final decree was passed on 14.11.2007. A.S.No.23 of 2007 was dismissed on 15.12.2007 holding that the appeal has become infructuous on account of the passing of the final decree. The defendant, who was the appellant in the appeal filed I.A.No.304 of 2008 in A.S.No.23 of 2007 to review the judgment and decree in A.S.No.23 of 2007. The application for review was dismissed as per the order dated 27.11.2008 which is under challenge in the revision filed at the instance of the defendant in the suit. 4. Meanwhile, against the final decree, the defendant had filed A.S.No.41 of 2009. There was delay in filing the appeal. It is stated that delay was occasioned since the appellant therein was prosecuting the Review Petition in A.S.No.23 of 2007. A.S.No.41 of 2009 is pending disposal and the application for condonation of delay is also not disposed of. 5. Execution proceedings were initiated by the plaintiff/decree holder. The executing court ordered delivery of the share allotted to the plaintiff as per the final decree proceedings. The Writ Petition is filed by the defendant in the suit praying that delivery may be kept in abeyance till the appeal against the final decree is disposed of. As per the interim order dated 20.3.2009 in CRP 220/2009 & WPC No.9029/2009 3 the Writ petition, the delivery was stayed for a period of ten days and it was extended for a further period of one week. 6. The view taken by the lower appellate court in A.S.No.23 of 2007 that the appeal against the preliminary decree has become infructuous on account of the passing of the final decree is unsustainable. If the appeal against the preliminary decree is allowed, the final decree automatically gets nullified. The fact that the final decree was passed would not make the appeal against the preliminary decree as infructuous. This position is well settled in the decision of the Supreme Court. The Revision Petitioner filed I.A.No.304 of 2008 to review the judgment in A.S.No.23 of 2007. But, the lower appellate court dismissed the Review Petition on the same view as was taken earlier and it was wrongly held that the petition for review is not a bonafide one. The view taken by the lower appellate court is absolutely unsustainable. The Review Petition is liable to be allowed. 7. I allow the Civil Revision Petition and set aside the order dated 27.11.2008 and allow I.A.No.304 of 2008 in A.S.No.23 of 2007. Accordingly, A.S.No.23 of 2007 is alive now. The lower appellate court shall dispose of A.S.No.23 of 2007, as expeditiously CRP 220/2009 & WPC No.9029/2009 4 as possible and at any rate on or before 31st July 2009. The parties shall appear before the lower appellate court on 25.5.2009. 8. Now the question arises as to what should be done in the execution proceedings. The share to be given to the plaintiff as per the preliminary decree is 1/4th share, the extent of which comes to 2.5 cents. By setting delivery of that property, the plaintiff/decree holder would not be able to cultivate, as cultivation as such would not be possible in that very small extent of property. Since the appeal is pending, it is only proper to direct the lower appellate court to dispose of the appeal, which I have already done while disposing of C.R.P.No.220 of 2009. It is only proper to keep in abeyance the proceedings for delivery of the property till A.S.No.23 of 2007 is disposed of. The Writ Petition is accordingly allowed to that extent. Both the cases are disposed of as above. K.T.SANKARAN, JUDGE csl