IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 CRP.No. 594 of 2009() --------------------- AGAINST THE ORDER DATED 22/07/2009 IN IA.4265/2007 IN OS.58/1991 of PRINCIPAL SUB COURT, PALAKKAD .................... REVN. PETITIONER(S)/RESPONDENTS NO.2 AND 6/DEFENDANTS 2 AND 6: -------------------------------- 1. K.A.VISWANATHAN,S/O.APPU,NEAR DHONI BULL STATION, PUDUPARIYARAM AMSOM,PUDUPARIYARAM VILLAGE,PALAKKAD TALUK. 2. SOWDAMINI,W/O.K.A.VISWANATHAN, PUTHUPARIYARAM AMSOM,DHONI,CHOLODE, PALAKKAD TALUK. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S)/PETITIONER & RESPONDENTS NO.1, 3 TO 5 & 7 TO 26/ SUPPL.2ND PLAINTIFF & DEFENDANTS NO.1, 3 TO 5, 7 AND 9 TO 28: ------------------------- 1. THANKA,W/O.RAMAN MARUTHAMPADOM, KAVASSERY AMSOM,DESOM,ALATHUR TALUK. 2. RAMAKRISHNAN.K.A,S/O.APPU,KADAMBADIPURA, MUTTIKULANGARA,PUDUPARIYARAM AMSOM,PALAKKAD TALUK. 3. SUKUMARAN,S/O.MADHAVAN,KUMMANKOTTIL, MUNDUR,PALAKKAD DISTRICT. 4. LAKSHMI,W/O.CHANDRASEKHARAN, MARUTHAMPALAM KALAM,PANAYUR, PALAKKAD DISTRICT. 5. KAMALAKSHI, W/O.KELUKUTTY, KINASSERY AMSOM,MUTHUKATTIL,PALAKKAD TALUK. 6. T.K.RAMANKUTTY,S/O.KUTTAN, KARINGANNIKALAM,MUTTIKULANGARA PUTHUPARIYARAM AMSOM,PALAKKAD TALUK. 7. T.R.APPU,S/O.RAMANKUTTY,MUTTIKULANGARA, KARINGANNIKALAM,PUTHUPARIYARAM AMSOM, PALAKKAD DISTRICT. CRP.594/09 8. VALSALA,W/O.GANGADHARAN,MUTTIKULANAGARA, PUTHUPARIYARAM,AMSOM,PALAKKAD TALUK. 9. SUDEEP,S/O.VALSALA,MUTTIKULANGARA, PUDUPARIYARAM AMSOM,PALAKKAD TALUK. 10. SUJITH,S/O.VALSALA,RESIDING AT -DO- 11. AJITH,S/O.VALSALA,RESIDING AT -DO- 12. SMITHA,D/O.LATE GANGADHARAN, MUTTIKULANAGARA,PUDUPARIYARAM,AMSOM, PALAKKAD TALUK. 13. SREEJA,D/O.GANGADHARAN, RESIDING AT -DO- 14. CHENTHAMARAKSHI,D/O.LATE.MADHAVAN, KOOMANKODEVEEDU,MUNDUR AMSOM,PALAKKAD TALUK. 15. SAKUNTHALA,D/O.LATE MADHAVAN, RESIDING AT -DO- 16. MADHAVIKUTTY,D/O.LATE MADHAVAN, RESIDING AT -DO- 17. SAROJINI,D/O.MADHAVAN, RESIDING AT -DO- 18. SUKUMARAN,S/O.MADHAVAN, RESIDING AT -DO- 19. CHANDRAN,S/O.LATE MADHAVAN, RESIDING AT -DO- 20. VIJAYAN,D/O.LATE MADHAVAN, RESIDING AT -DO- 21. PADMAVATHI,D/O.LATE MADHAVAN, RESIDING AT -DO- 22. VENU,S/O.LATE MADHAVAN, RESIDING AT -DO- 23. KANAKALATHA, D/O.T.K.RAMANKUTTY,KARINGANNIKULAM, MUTTIKULANGARA,PUDUPARIYARAM AMSOM, PALAKKAD TALUK. 24. VIJAYARAGHAVAN,S/O.T.K.RAMANKUTTY, KARIKANNIKALAM,MUTTIKULANGARA,PUDUPARIYARAM AMSOM, PALAKKAD TALUK. CRP.594/09 25. DEVADAS,S/O.T.K.RAMANKUTTY, RESIDING AT -DO- THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.594 OF 2009 () ----------------------------------- Dated this the 6th day of November, 2009 O R D E R The petitioners are the respondents 2 and 6 in I.A.No.4265 of 2007 in O.S.No.58 of 1991 on the file of the Sub Court, Palakkad. The above suit is one for partition and after passing of the preliminary decree under the I.A. mentioned above, the final decree proceedings are in progress. In the final decree proceedings, the court below has passed an order directing the appointment of a Commissioner to divide the properties in tune with the preliminary decree to allot the properties to the sharers. That order has been passed negativing the objections raised by the present respondents that no share had been allotted under the preliminary decree in favour of the additional 2nd plaintiff. Propriety and correctness of the order so passed by the court below is challenged in the revision. CRP.594/2009 2 2. According to the learned counsel for the petitioners, the preliminary decree passed in the suit is null and void because some of the legal representatives of a party, who were impleaded before passing the decree had not been brought on record within the prescribed period and their impleadment was made without seeking for setting aside the abatement caused on the death of the deceased party. Similarly, according to the counsel, the preliminary decree does not provide for any allotment of share to the petitioner in the I.A., who had been impleaded as additional 6th plaintiff in the suit. So much so, on both these counts, the final decree application moved by the petitioner in the I.A. was not maintainable and it should have been dismissed by the court below. But, negativing the objections canvassed by the petitioners, the court below has appointed a Commissioner for division of the properties under the impugned order, and, according to the counsel, it is liable to be set aside invoking the revisional jurisdiction vested with this Court. CRP.594/2009 3 3. Perusing the order passed by the court below with reference to the submissions made by the learned counsel for the petitioners, I find no interference in exercise of the revisional jurisdiction is called for. Whatever be the challenges canvassed by the petitioners with respect to abatement consequent to the delay in bringing on record the legal heirs of a party, who passed away, before the passing of the preliminary decree, such challenges should have been canvassed before the passing of the preliminary decree and not in the final decree proceedings continued after the preliminary decree. Challenge which was not taken before the passing of the preliminary decree with respect to impleadment of any of the parties consequent to the death of a party to the suit, cannot be allowed to be agitated in the final decree proceedings as rendering the preliminary decree null and void. Preliminary decree was also not challenged on that ground by way of appeal or any other process of law. It is too late in the day for these petitioners to raise the question of abatement in respect of impleadment of legal representatives of the deceased persons in preliminary decree proceedings for CRP.594/2009 4 the reason of not moving for setting aside the abatement in seeking impleadment of the legal representatives, in the final decree proceedings to challenge the preliminary decree as void. Second ground canvassed by the petitioners that no share was allotted in the suit property to the petitioner in the I.A. and so much so, the application at her instance for passing of the final decree is not entertainable is also found to be meritless. The order passed by the court below would show that on the death of the plaintiff, his legal representatives were impleaded as supplemental 2nd and 5th plaintiffs, but, they were not interested in prosecuting the case. Suit was also dismissed for default. The 6th defendant in the suit, petitioner in the I.A. giving rise to the order impugned in the revision, moved a restoration application seeking her transposition as the 6th plaintiff. That was allowed by the court. That order was challenged in revision by some of the defendants and the additional plaintiffs 2 to 5 before this Court. That revision was disposed transposing additional plaintiffs 2 to 5 as defendants in the suit and the additional 6th plaintiff was later given a new ranking as supplemental CRP.594/2009 5 2nd plaintiff. In the decree, additional 6th plaintiff has not been shown as the additional 2nd plaintiff after transposition of supplemental plaintiffs 2 to 5 as defendants as per the orders of this Court is banked upon by the revision petitioners, some of the defendants in the suit, to contend that the petitioner in the I.A. was not allotted any share in the preliminary decree. The decree shows that supplemental 2nd plaintiff has been allotted 1/8 th share in the suit property. In the cause title of the decree, there is an omission to state that the additional 6th plaintiff on transposition of the supplemental plaintiffs 2 to 5 as additional defendants in the suit was given the rank of additional 2nd plaintiff, had been canvassed to raise the challenge that the petitioner in the I.A. (additional 2nd plaintiff) has not been allotted any share. The court below, taking note of the facts and circumstances involved and also observing it was only an omission in the decree to state that the additional 2nd plaintiff had been ranked as the additional 2nd plaintiff (petitioner in the I.A.) overruled the objections of the revision petitioners, the 2nd and 6th respondents in the final decree applications, I find that the order passed by the court below is CRP.594/2009 6 proper, valid and correct and there is no merit in the objections put forth by these revision petitioners challenging the maintainability of the final decree application moved by the additional 2nd plaintiff. Revision lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp