IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 CRP.No. 482 of 2011() --------------------------- OS.498/1989 of ADDL. MUNSIFF COURT, KOZHIKODE-II .................... REVN. PETITIONER(S): RESPONDENTS 1 TO 5: ------------------------------------------------------ 1. P.RAMANI, AGED 57 YEARS, W/O.I. MOHANDAS, 2/106J, SREYA, UDAYA KURUMBA ROAD,KARAPARAMBA, KACHERI AMSOM DESOM, KOZHIKODE TALUK. 2. P.VIJAYALAKSHMI @ SUSHEELA, AGED 54 YEARS, C.P.BABU, 12/302 JEETH, CHAMUNDI PARAMBA, ERANHIPALAM, KACHERI AMSOM DESOM, KOZHIKODE TALUK. 3. P.DEVADAS, AGED 50 YEARS, E.F.4/5931, KERALA STATE HOUSING BOARD COLONY, BILATHIKULAM, ERANHIPALAM, KACHERI AMSOM DESOM, KOZHIKODE TALUK. 4. V. GEETHA, AGED 55 YEARS, W/O. LATE E. KOMALARAJ, 105/1/SANGEETH, VARADAMMAL GARDENS, KILPAK, CHENNAI - 10. 5. THOTTUNGAL DEVADASAN, AGED 84 YEARS, S/O.KUTTAYI, 12/128, THOTTUNGAL HOUSE, GURUKKAL KAVU ROAD, BEYPORE AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.JACOB ABRAHAM RESPONDENT(S): PETITIONERS 1 TO 6 AND SUPPLEMENTAL RESPONDENTS 6 TO 8 ----------------------------------------------------------------------- 1. SUSEELA, AGED 55 YEARS, 12/302, THOTTUNGAL HOUSE, GURIKKAL KAVU ROAD, BEYPORE AMSOM, DESOM, KOZHIKODE TALUK - 673 015. svs ........2/-... ...2... C.R.P. NO.482/2011 2. SYAMAPRASAD, AGED 34 YEARS,12/302, THOTTUNGAL HOUSE, GURIKKAL KAVU ROAD, BEYPORE AMSOM, DESOM,KOZHIKODE TALUK - 673 015. 3. PRASANTH, AGED 28 YEARS, 12/302, THOTTUNGAL HOUSE, GURIKKAL KAVU ROAD, BEYPORE AMSOM, DESOM,KOZHIKODE TALUK - 673 015. 4. PRASHOB, AGED 28 YEARS,12/302, THOTTUNGAL HOUSE, GURIKKAL KAVU ROAD, BEYPORE AMSOM, DESOM,KOZHIKODE TALUK - 673 015. 5. PRAJEESH, AGED 24 YEARS, 12/302, THOTTUNGAL HOUSE, GURIKKAL KAVU ROAD, BEYPORE AMSOM, DESOM,KOZHIKODE TALUK - 673 015. 6. PRABHEESH, AGED 19 YEARS 12/302, THOTTUNGAL HOUSE, GURIKKAL KAVU ROAD, BEYPORE AMSOM, DESOM,KOZHIKODE TALUK - 673 015. 7. THOTTUNGAL LAKSHMIKUTTY, AGED 60 YEARS, S/O. BHASKARAN, RETIRED SCHOOL TEACHER, PADINHARAYIL HOUSE, CHALIYAM, KADALUNDI AMSOM, PAZHANCHANNOOR DESOM, KOZHIKODE TALUK - 673 302. 8. THOTTUNGAL REGHUNANTHAN, AGED 55 YEARS, 12/153 RESIDING AT SREE SAI HOUSE,GURIKKAL KAVU ROAD, BEYPORE AMSOM, DESOM,KOZHIKODE TALUK - 673 015. 9. THOTTUNGAL SYAMALA, AGED 54 YEARS, W/O. LATE SAHADEVAN, 17/210, RESIDING AT PADINHARE KARIPALATH HOUSE, NALLOR, FEROKE P.O., FEROKE AMSOM DESOM,KOZHIKODE TALUK - 673 631. R1-9 BY ADV. SRI.K.MUHAMMED SALAHUDHEEN THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P. JOSEPH, J. ---------------------------------------- C.R.P.No.482 of 2011 --------------------------------------- Dated this 24th day of November, 2011 ORDER Respondents 1 to 5, supplementary plaintiffs 2 to 5 and first defendant in I.A.Nos.558 and 559 of 2010 in I.A.No.3521 of 1997 in O.S.No.498 of 1989 of the Court of learned Additional Munsiff- II, Kozhikode are the petitioners before me challenging the order dated 19.07.2011 setting aside the final decree and condoning the delay in filing that application. 2. Respondents 1 to 6 are the legal heirs of one Purushothaman (second defendant in the suit) with whom also in the party array a preliminary decree for partition was passed. That was followed by I.A.No.3521 of 1997 for passing the final decree. Final decree was passed and it was executed on 28.10.2009 as per the order in E.P.No.4 of 2010. Petitioners claim to have got possession of their share. At that time, respondents 1 to 6 filed I.A.Nos.558 and 559 of 2010 to set aside the final decree and condone the delay stating that Purushothaman, their predecessor-in-interest was set ex parte in the final decree proceeding and that was followed by a final decree. The said applications were allowed by the learned C.R.P.No.482 of 2011 -: 2 :- Additional Munsiff-II, Kozhikode by the impugned order. 3. It is contended by learned counsel for petitioners that the long delay in filing the application to set aside the final decree is not properly explained. I have heard learned counsel for respondent as well. 4. It appears to me that the final decree passed in the case is nullity since Purushothaman, predecessor-in-interest of respondents 1 to 6 died on 14.02.2003 and the final decree was passed on 05.10.2004 without any of his legal representatives on record. When a decree is passed against a dead person without his legal representatives on record, it is a nullity. 5. When faced with the above situation learned counsel for petitioners argued that since Purushothaman, predecessor-in- interest of respondents 1 to 6 was declared ex parte in the final decree proceeding during his life time, provisions of Order XXII of Rule 4(4) of the Code of Civil Procedure (for short, "the Code”) would apply. But, that provision only enables the Court to exempt in its discretion a party from impleading the legal heirs of a deceased defendant who failed to file written statement. Petitioners admittedly did not avail of that exemption after the death of Purushothaman, predecessor-in-interest of respondents 1 to 6. Hence Order XXII of Rule 4(4) of the Code is no answer so far as this case is concerned against the ex parte decree which C.R.P.No.482 of 2011 -: 3 :- I said, is a nullity. 6. In that view of the matter, though not for the above reason there is no reason to interfere with the ultimate order on I.A.Nos.558 and 559 of 2010 setting aside the final decree. It need only be understood as a re-opening of the final decree proceeding for the reason I have stated above. 7. Learned counsel for petitioners submitted that if parties are send to the Adalath there is a possibility of settlement. Learned counsel submitted that parties are in possession of the properties pursuant to the final decree which was executed long back. Learned counsel requested that if possible, possession of parties based on the final decree may not be disturbed. 8. Certainly, that is a matter which the learned Additional Munsiff has to take into consideration. If the parties are agreeable and/or learned Munsiff considers it appropriate that the matter could be send to the Lok Adalath of that station to explore the possibility of parties coming to a settlement, learned Munsiff shall pass appropriate orders in that regard. With the above direction this civil revision is dismissed. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-