IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 RP.No. 169 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN SA.21/1995 Dated 21/10/2009 .................... PETITIONERS/ RESPONDENTS 7,8 ------------------------------------- 1. SASIDHARAN, VARIYAMPURATH HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK, 2. SOMAN, VARIYAMPURATH HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK, BY ADV. MR.K.G.BALASUBRAMANIAN RESPONDENTS/APPELLANTS & RESPONDENTS,1,4,6,9,11 --------------------------------------------------- 1. BALAKRISHNAN, VARIYAMPURATH HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK. 2. SAVITHRI W/O.BALAKRISHNAN, VARIYAMPURATH HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK. 3. GIRIJAN S/O.ACHUTHAN, VARIYAMPURATH HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK. 4. NALINI D/O.VARIYAMPURATH HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK. 5. PRAKASH,S/O.VARIYAMPURATH HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK. 6. CHANDRAN, VARIYAMPURATH HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK. BY ADV.MR. P R VENKITESH ADV.MR.ABRAHAM GEORGE JOSEPH ADV.MR.B GOPAKUMAR THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.P.No.169 of 2010 in S.A.No.21 of 1995 --------------------------------------- Dated this 24th day of February, 2010 ORDER Heard counsel for petitioners and respondent Nos.1 and 6. 2. This application is for review of order dated 21-10-2009 on I.A.No.233 of 2008 in this second appeal. The second appeal arose from judgment and decree of learned Additional Sub Judge, Ernakulam in A.S.No.189 of 1993 reversing judgment and decree passed by learned First Additional Munsiff, Ernakulam in O.S.No.23 of 1988. Petitioners in this review application who are respondent Nos.7 and 8 in the second appeal remained absent in the second appeal which was disposed of as per judgment dated 21-10-2009. Now the prayer of petitioners (respondent Nos.7 and 8 in the second appeal ) is to review the order passed by this court on 21-10-2009 on I.A.No.233 of 2008. 3. Short facts necessary for consideration of that prayer are: Respondent No.2 in the second appeal died pending the appeal. Respondent No.6 in the petition for review (respondent No.11 in the second appeal) wanted to come on record as legal representatives of deceased respondent No.2 on the strength of a Will said to be executed by deceased respondent No.2. This court directed the first appellate court to conduct an enquiry as contemplated under Order 22 R.P.No.169 of 2010 in S.A.No.21 of 1995 2 Rule 5 of the Code of Civil Procedure (for short, “the Code”). The parties were directed to appear before the first appellate court for the said enquiry. Accordingly, the contesting parties appeared before the first appellate court which conducted the enquiry as to genuineness of the Will. Petitioners in the application for review (respondent Nos.7 and 8 in the second appeal ) did not appear in the first appellate court, according to them as that they did not get notice from that court. First appellate court after enquiry entered a finding that the Will is genuine and that finding was transmitted to this court. Thereafter the second appeal was heard. While considering the second appeal, I.A.No.233 of 2008 was not objected in this court and in the light of the finding entered by the first appellate court regarding genuineness of the Will it was allowed and respondent No.6 in the application for review was impleaded as respondent No.11, being legal representative of deceased respondent No.2 . The second appeal was disposed of. Contention of petitioners in the application for review is that they were not given opportunity as provided under Order 41 Rule 26 of the Code to raise their objection on the finding entered by the first appellate court regarding genuineness of the Will and that they did not get notice of the proceeding of the first appellate court relating to the enquiry on the Will. R.P.No.169 of 2010 in S.A.No.21 of 1995 3 4. So far as the contention that there was no notice from first appellate court to the petitioners in the review application is concerned, fact remained that they remained absent in the second appeal. This court was not obliged to issue notice to them as it is not the requirement of law that notice of subsequent proceedings should be given to a party who remained absent before court inspite of notice served on him. Still this court directed parties to appear in the first appellate court. Assuming that there was no notice from the first appellate court on the proceeding relating to the enquiry regarding genuineness of the Will that is not a ground to seek review of the order after the disposal of the second appeal. So far as Order 41 Rule 26 of the Code relied on by learned counsel for petitioners is concerned, that rule followed Rule 25 of the Code which dealt with the first appellate court framing additional issues and referring the same for trial to the court from whose decree the appeal is perfected. That rule in my view has nothing to do with the enquiry regarding genuineness of Will directed to be conducted by first appellate court under Order 22 Rule 5 of the Code. Rules 25 and 26 of the Order 41 arise only when the appellate court decide to frame additional issues on the pleadings of the parties and to hold trial on these issues. R.P.No.169 of 2010 in S.A.No.21 of 1995 4 5. On going through the petition and hearing learned counsel on both sides I do not find any reason to review the order on I.A.No.233 of 2008 particularly as the second appeal has already been disposed of. Accordingly the petition is dismissed. THOMAS P JOSEPH, JUDGE Sbna/