IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 OP(C).No. 3572 of 2011(O) ------------------------- OS.333/2009 of PRL.MUNSIFF COURT., KOLLAM .................... PETITIONER/PETITIONER-FIRST DEFENDANT: --------------------------------------------------------- JOSEPH, AGED ABOUT 68 YEARS, S/O.YOHANNAN, SINDHU BHAVAN, PERUMON KIZHAKKE CHERRY, PANAYAM VILLAGE, KOLLAM TALUK. BY ADV. SRI.T.R.RAJAN RESPONDENTS/PLAINTIFFS AND DEFENDANTS 2 OT 5: ---------------------------------------- 1. YOHANNAN JAMES, AGED 57 YEARS, S/O.D.YOHANNAN, EX-SERVICEMAN, NIRAVEETTIL HOUSE, PARUMON KIZHAKKE CHERRY, PANAYAM VILLAGE, KOLLAM TALUK. 2. JAINAMMA, AGED 77 YEARS, W/O.LATE STEPHEN, RESIDING AT PADINJAREKADAVIL HOUSE, VELIMON, PERINAD VILLAGE, KOLLAM TALUK. 3. BARBARA, AGED 63 YEARS, W/O.LATE STALIN, RESIDING AT GLORIOUS VILLA, ARRINALLOOR, THEVALAKKARA, KARUNAGAPPALLY TALUK. 4. LILLYKUTTY, AGED 60 YEARS, W/O.ALPHONSE, RESIDING AT SHEEBA BHAVAN, PERUMON, PANAYAM VILLAGE, KOLLAM TALUK. 5. JASINTHA, AGED 53 YEARS, W/O.JAMES, RESIDING AT ANCY BHAVAN, PERUMON, PANAYAM VILLAGE, KOLLAM DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3572 of 2011 2 APPENDIX PETITIONER'S EXHIBITS : EXT.P1 TRUE COPY OF THE PLAINT IN OS.333/2009 ON THE FILE OF THE MUNSIFF COURT, KOLLAM. EXT.P2 TRUE COPY OF THE IA.5178/2010 FILED BY THE PETITIONER HEREIN IN OS.333/2009 ON THE FILE OF THE MUNSIFF COURT, KOLLAM. EXT.P3 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE FIRST RESPONDENT HEREIN IN OS.333/2009 ON THE FILE OF THE MUNSIFF COURT, KOLLAM. EXT.P4 TRUE COPY OF THE JUDGEMENT DATED 25/11/2010 IN OS.333/2009 OF THE MUNSIFF COURT, KOLLAM. EXT.P5 TRUE COPY OF THE REVIEW PETITION FILED BY THE PETITIONER HERE IN OS.333/2009. EXT.P6 TRUE COPY OF THE PETITIONER FILED BY THE PETITIONER SEEKING STAY OF FURTHER PROCEEDINGS PURSUANT TO THE ORDER APPOINTING COMMISSIONER AND SURVEYOR IN THE FINAL DECREE PROCEEDINGS. EXT.P7 TRUE COPY OF THE I.A.NO.3314/2011 IN O.S.NO.333/2009 OF the MUNSIFF COURT, KOLLAM RESPONDENTS' EXHIBITS : NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3572 of 2011 --------------------------------------- Dated this 03rd day of November, 2011 JUDGMENT First defendant in O.S.No.333 of 2009 of the Court of learned Munsiff, Kollam seeks a direction to the learned Munsiff for disposal of Exts.P5 and P7, applications before final decree is passed in the case. 2. First respondent filed the suit for partition claiming that A and B schedule properties were subjected to partition as per a document executed between the co-owners including the late Cicily but, without the junction of petitioner/first defendant. In that petition, a share was allotted to the petitioner as well. First respondent prayed in the plaint that if petitioner ratifies that partition deed, plaint B schedule which was allotted to the late Cicily be partitioned and first respondent be given 1/6th share and in case petitioner does not ratify the partition deed, plaint A and B schedule items may be partitioned. According to the petitioner, though he initially refused to ratify the partition deed by filing written statement, later he filed I.A.No.5178 of 2010 withdrawing the contentions in the written statement and ratifying the partition deed. When the matter came up for trial in O.P(C).No.3572 of 2011 -: 2 :- the list, respondents 2 to 5/defendants 2 to 5 remained ex parte. Learned Munsiff passed preliminary decree for partition of plaint A and B schedule items ignoring I.A.No.5178 of 2010 whereby petitioner had withdrawn his contentions in the written statement. The preliminary decree was followed by an application filed by the first respondent for passing a final decree. The said application is pending. In the meantime, petitioner filed Exts.P5 to P7, applications – for review of the preliminary judgment and decree, stay of final decree proceeding and to condone the delay in filing the application for review. Grievance of petitioner is that Exts.P5 and P7, applications are not disposed of so far but learned Munsiff is proceeding with the final decree proceeding based on the preliminary decree. 3. Learned counsel submitted that apart from that petitioner filed I.A.No.5178 of 2010, proof affidavit filed by the first respondent was in tune with partition of plaint B schedule based on the partition deed executed but it was without considering the same and I.A.No.5178 of 2010 that learned Munsiff has proceeded to pass the preliminary decree in respect of plaint A and B schedules. This, according to learned counsel is an error apparent on the face of the record and hence the application for review. O.P(C).No.3572 of 2011 -: 3 :- 4. Having regard to the circumstances stated by learned counsel, I am inclined to direct the learned Munsiff to dispose of Exts.P5 and P7, applications if the same have not so far been disposed of. Resultantly this original petition is disposed of directing learned Munsiff, Kollam to dispose of Exts.P5 and P7, applications (for review of preliminary judgment and decree and condone the delay in filing the said application) if the same remains undisposed of, if the preliminary steps are over and there is no legal impediment in its disposal as early as possible, at any rate before passing final decree in the case, after hearing the parties on record. (THOMAS P. JOSEPH, JUDGE) Sbna/-