IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WP(C).No. 13339 of 2009(O) -------------------------- AGAINST THE ORDER IN IA.NO.4182/2004 IN OS.157/1986 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): --------------- 1. THANKAM, W/O. LATE APPUKUTTAN, AGED 84 YEARS, NEDUVALLIKALAM, PALLASANA AMSOM, PALAKKAD DISTRICT. 2. SATHEEDEVI, W/O. RAMANKUTTY, AGED 62 YEARS, DEVANIVAS, OZHIVUPARA, PALLASANA AMSOM, PALAKKAD DISTRICT. 3. SUDHA, W/O. RAJASEKHARAN MASTER, ANIKKODE HOUSE, PANAYUR, ATHIKODE, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------- 1. SUGATHAN, S/O. APPUKUTTAN, NEDUVALLIKALAM, PALLASANA AMSOM,PALAKKAD DISTRICT. 2. CHANDRAN, S/O. APPUKUTTAN, NEDUVALLIKALAM, PALLASANA AMSOM,PALAKKAD DISTRICT. 3. RAVEENDRANATHAN, S/O. APPUKUTTAN, NEDUVALLIKALAM, PALLASANA AMSOM,PALAKKAD DISTRICT. 4. MOHANAN, S/O. APPUKUTTAN, NEDUVALLIKALAM, PALLASANA AMSOM,PALAKKAD DISTRICT. 5. VISWANATHAN, S/O. APPUKUTTAN, NEDUVALLIKALAM, PALLASANA AMSOM,PALAKKAD DISTRICT. ADV. SRI.O.V.MANIPRASAD FOR R1 SRI.SUNIL NAIR PALAKKAT FOR R4 & 5 SRI.K.N.ABHILASH FOR R4 & 5 SMT.R.LEELA FOR R4 & 5 SRI.JIMMY.N.JOSEPH FOR R4 & 5 SRI.D.KRISHNA PRASAD FOR R3 SMT.P.K.RADHIKA FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 09/03/2010 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J ------------------------------------- W.P.(C) No.13339 OF 2009 -------------------------------- Dated this the 9th day of March 2010 JUDGMENT Writ petition is filed against Ext.P3 order passed by the learned Sub Judge, Palakkad dismissing an application moved by the petitioners for reopening of the preliminary decree passed in the suit O.S No.157 of 1986. Petitioners are the legal heirs of one of the defendants, 1st defendant in the suit. Preliminary decree passed in the suit was challenged in the appeal filed by one among the defendants, 3rd defendant. With some modifications, it is submitted, the preliminary decree passed was approved and the appeal disposed. Pending final decree proceedings, the 1st defendant passed away and his legal heirs, the petitioners, were brought in as additional defendants. After being impleaded as such, those petitioners moved a separate petition as I.A No.954/2007 for reopening the preliminary decree passed by the court. The case set up by the petitioners was that over some items of properties which have not been included in the suit, the petitioners have exclusive and independent right otherwise than as the legal heirs of 1st defendant, that also required to be partitioned in the very same suit and to do so, allotment already made in the preliminary decree warranted modification. That application was objected to by the plaintiffs. The learned Munsiff after hearing both W.P.(C) No.13339 OF 2009 Page numbers sides found no merit in the application and it was dismissed vide Ext.P3 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Learned counsel for the petitioners relying on some authorities contended that even after passing a preliminary decree, it is open to the court to pass a supplemented preliminary decree, and also if necessary, modify the allotment made in the earlier preliminary decree. Submitting that these petitioners were not parties to the suit earlier when the preliminary decree was passed and they were brought in as legal representatives of one of the defendants only during the final decree proceedings, it is urged that setting aside the order of the court below the application moved by them for reopening the preliminary decree may be directed to be considered and disposed on merits. After perusing the impugned order with reference to the submissions made by the learned counsel in the back drop of the facts and circumstances involved in the case, I find, no interference with the order of the court below is called for invoking the extraordinary jurisdiction vested with this court. Even on the admitted case of the petitioners they sought for reopening of the preliminary decree in respect of some items of properties which are not covered in the suit or under the preliminary decree passed by the court. Secondly they W.P.(C) No.13339 OF 2009 Page numbers have been brought in the final decree proceedings as the legal representatives of the 1st defendant and without any demur or objection from them they have been impleaded in the proceedings only as such. When that be so, they cannot set up any independent right otherwise than as the legal heirs of the deceased 1st defendant in the proceedings covered by the suit. In case they have any independent rights, they could agitate such right only if they are impleaded in their independent capacity otherwise than as legal heirs of the deceased 1st defendant. That is not the case here. So much so, when a preliminary decree had already been passed with their predecessor, the 1st defendant, and an appeal preferred against that decree had already been disposed with some modifications, the request made by the petitioners for reopening the preliminary decree when they have been impleaded as legal heirs of the 1st defendant in final decree proceedings that too advancing a case that over some items not covered by the suit they have exclusive right, which is not the subject matter of the suit deserve no consideration at all. If at all they have any right over properties not included in the present suit for partition, it is open to them to claim such right by taking appropriate proceedings before the appropriate forum as provided by law. Writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// vdv P.A TO JUDGE