IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 RP.No. 196 of 2008(I) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.29700/2005 Dated 25/10/2005 .................... REVIEW PETITIONERS/RESPONDENTS 6 TO 13 ------------------------------------------------------- 1. THRESSIAMMA FRANCIS, AGED 74, W/O.LATE FRANCIS, VILLANASSERY HOUSE, ALINCHUVADU, VENNALA P.O., COCHIN - 25. 2. RAHEL JOHN, AGED 70, W/O.JOHN, PUTHENVEETTIL, VENNALA, KOCHI - 25. 3. N.J.JOHN @ SIMON, AGED 72, S/O.JOHN, NEDUVELIPARAMBIL, EDAYAKUNNAM, SOUTH CHITTOOR P.O., EDAYAKUNNAM, KOCHI - 27. 4. MARY, W/O.MICHEAL, AGED 62, CHEMBADIPARAMBIL, PONJIKKARA, BOLGATTY P.O., MULAVUKAD VILLAGE. 5. SHERLY, AGED 60, W/O.SEBASTIAN, NEDUVELIPARAMBIL, EDAYAKUNNAM, SOUTH CHITTOOR P.O., EDAYAKUNNAM, KOCHI - 27. 6. N.J.ANTONY, AGED 57, S/O.JOHN, NEDUVELIPARAMBIL, EDAYAKUNNAM, SOUTH CHITTOOR P.O., EDAYAKUNNAM, KOCHI - 27. 7. SHYLA JOHN, AGED 53, W/O.JOHN, THEKKUMPURAM, KALOOR, KOCHI - 17. 8. RANI GEORGE, AGED 47, W/O.GEORGE, CHETTIPARAMBIL, ST.MARTIN ROAD, PALARIVATTOM, COCHIN - 25. BY ADV. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB R.P.NO. 196/2008 : 2 : RESPONDENTS: PETITIONER & RESPONDENTS 1 TO 5 ----------------------------------------------------------- 1. V.V.MARTIN, S/O.GEORGE @ VAKKACHAN, VETTIKKATTU HOUSE, VENNALA DESOM, KANAYANNUR TALUK, ERNAKULAM, COCHIN - 682 025. 2. ROSAMMA, W/O.LATE GEORGE @ VAKKACHAN, VETTIKKATTU HOUSE, VENNALA DESOM, KANAYANNUR TALUK, ERNAKULAM, COCHIN - 25. 3. ANNA @ DAISY, W/O.JOSEPH, PUTHIYA ROAD, PAREPARAMBIL, KUREEKKAD, KUREEKKAD VILLAGE, KANAYANNUR TALUK. 4. ANTONY @ STANLY, S/O.LATE GEORGE @ VAKKACHAN, VETTIKKATTU HOUSE, VENNALA DESOM, KANAYANNUR TALUK, ERNAKULAM, COCHIN - 25. 5. PAILY KUNJUMON, S/O.LATE GEORGE @ VAKKACHAN, VETTIKKATTU HOUSE, VENNALA DESOM, KANAYANNUR TALUK, ERNAKULAM, COCHIN - 25. 6. ANNAMMA FRANCIS (EXPIRED), W/O.LATE FRANCIS, NEDUVELIPARAMBIL, PALARIVATTOM, POONITHURA VILLAGE, KOCHI - 25. BY ADV. SRI.THOMAS ABRAHAM FOR R1 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 02/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.P. No. 196 of 2008 in W.P.(C) No. 29700 of 2005 ========================== Dated this the 2nd day of June, 2008. ORDER The review petitioners are the plaintiffs in O.S. No. 1066 of 1995, which was a suit for partition and separate allotment to the plaintiffs their share over the properties which were left behind by one Anthappan. The plaintiffs in the above suit are the three daughters and the legal heirs of the deceased daughter of the said Anthappan. The sole defendant in the said suit was one George @ Vakkachan who died on 02.05.1996 pending suit. In the year 1999, a preliminary decree for partition was passed. Thereafter a final decree application was filed by the plaintiffs and the final decree proceedings are pending. While so, the 1st respondent herein got himself impleaded in the final decree proceedings and got a stay of passing of the final decree alleging that he is the adopted son of the said George @ Vakkachan. After some contest, he withdraw himself from O.S. No. 1066 of 1995 and filed a separate suit as O.S. No. 785 of 2002 seeking R.P.NO. 196 of 2008 : 2: in W.P.(C) No. 29700/2005 partition. Subsequently, O.S. No. 785/2002 which was pending before the Additional Sub Court, Ernakulam, was transferred to the Principal Sub Court, Ernakulam where the final decree proceedings in O.S No. 1066 of 1998 were pending. 2. The 1st respondent herein filed W.P.(C) No. 29700 of 2005 alleging that both the suits have to be jointly tried and during the pendency of O.S. No. 785 of 2002, a commission had been issued in the final decree proceedings in O.S. No. 1066 of 1995 and unless further proceedings in O.S. No. 1066 of 1995 are stayed and joint trial is ordered, the 1st respondent herein will suffer irreparable harm. This Court disposed of the writ petition at the stage of admission on 25.10.2005. This Court did not accede to the request of the 1st respondent herein for joint trial of his suit along with O.S. No. 1066 of 1995 since the earlier suit O.S. No. 1066 of 1995 had already ripened into a preliminary decree. What remains to be done in that suit is the passing of final decree. However, this Court observed that the passing of the final decree in O.S. No. 1066 of 1995 shall stand stayed until the disposal of O.S. No. 785 of 2002. It is this observation which R.P.NO. 196 of 2008 : 3: in W.P.(C) No. 29700/2005 was caused inconvenience to the plaintiffs in O.S. No. 1066 of 1995. Going by the report of the Principal Sub Judge also it is clear that the 1st respondent has been causing obstacles in the early disposal of O.S. No. 1066 of 1995. The learned Sub Judge has reported that the delay in the passing of the final decree in O.S. No. 1066 of 1995 is on account of the tactics adopted by the 1st respondent herein. Even if the contention of the 1st respondent herein in the suit filed by him are upheld it may, at best, affect the other legal heirs of deceased 1st defendant. Even otherwise, if ultimately O.S. No. 785 of 2002 filed by the 1st respondent succeeds and if by that time the properties in O.S. No. 1066 of 1995 have already been delivered over to the allotties, it is not as if the first respondent is not having any remedy. There is the remedy of restitution under Section 144 of the Code of Civil Procedure. Hence the 1st respondent cannot any more delay the passing of the final decree in O.S. No. 1066 of 1995. Accordingly, the direction in the judgment dated 25.10.2005 in W.P.(C) No. 29700 of 2005 to the effect that passing of the final decree in O.S. No. 1066 of 1995 shall stand R.P.NO. 196 of 2008 : 4: in W.P.(C) No. 29700/2005 stayed until the disposal of O.S. No. 785 of 2002, is reviewed and is deleted from the judgment which was pronounced without hearing the review petitioners/plaintiffs. The court below shall proceed to pass the final decree in O.S. No. 1066 of 1995 uninfluenced by O.S. No. 785 of 2002 which shall be tried and disposed of separately in due course. This review petition is allowed to the above extent. V. RAMKUMAR, JUDGE. rv R.P.NO. 196 of 2008 : 5: in W.P.(C) No. 29700/2005