IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 RFA.No. 307 of 2011 ----------------------------- [AGAINST THE ORDER DATED 31/01/2011 MADE IN FINAL DECREE INTERLOCUTORY APPLICATION NO.1711/1988 IN OS.NO.49/1983 OF THE ADDITIONAL SUB COURT, PALAKKAD] .................... APPELLANT/2ND DEFENDANT: -------------------------------------------- APPUNNI, S/O.VELANKUTTY, RESIDING AT VADAKKE PAVADIYIL, PALLAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS.SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.C.A.ANOOP, SRI.MATHEWS RAJU, SRI.A.R.NIMOD. RESPONDENTS/PLAINTIFF/DEFENDANTS 3 TO 8: ----------------------------------------------------------------------- 1. MANIKKAN, S/O.VELANKUTTY, 2. RAMAKRISHNAN, S/O.VELANKUTTY, 3. CHIDAMBARAM, S/O.VELANKUTTY, RESPONDENTS 1 TO 3 ARE RESIDING AT VADAKKE PAVADIYIL, PALLAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. 4. ANNAPURNI, W/O.NANJAPPANKUTTY, RESIDING AT PAPPANCHALLA, THUMBALERI, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. R.F.A. NO. 307/2011: 5. AMMU, W/O.K.BALAN, RESIDING AT CHEERRAKUZHI, KIZHAKKANCHERRY, ALATHUR TALUK, PALAKKAD DISTRICT. 6. KANAKAM, W/O.RAJAN, RESIDING AT METHRAYIL HOUSE, MOORKANIKKARA, THRISSUR DISTRICT. 7. JANESH, S/O.MANIKKAN, RESIDING AT VADAKKE PAVADIYIL, PALLAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 27/05/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.307 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of May, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.The 2nd defendant in a suit for partition appeals against the final decree. As noted in paragraph 4 of the impugned judgment, the suit has a checkered career of 27 years by now and the parties were of the unanimous view that on certain aspects, the commission report has to be modified. The parties wanted to avoid further delay and they had agreed before the court below as to the manner in which the modifications have to be made to the commission report. The court below has recorded categorically that “......as agreed upon by the parties, a final decree can be passed relying on the commission report and accompanying plan dated 23-1-96.”. RFA307/11 -: 2 :- 2.The learned counsel for the appellant says that there was no consent before the court below as recorded in the impugned order and that the allotment is contrary to law in as much as Ext.C1 report, if set aside or modified, the reasons therefor ought to have been given. We are not impressed. We do not find any specific ground of attack as regards the so-called consent, going by the memorandum of appeal. Yet, we are of the view that even if the appellant has any such plea, it is trite law that it can be had only by an application for review to the court which passed the impugned judgment and cannot be raised in an appeal before the superior court. 3.For the aforesaid reasons, we are of the view that the impugned order is essentially passed on consent. Hence, leaving open the right, if any, of the appellant-2nd defendant to seek its review, in accordance with law, this appeal is only to be dismissed. RFA307/11 -: 3 :- In the result, this appeal is dismissed in limine, subject to what is stated above. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/0206