IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 OP(C).No. 608 of 2011(O) ------------------------ AGAINST THE ORDER IN IA 559/2010 IN OS.498/1989 OF MUNSIFF COURT-II, KOZHIKODE .................... PETITIONER: ----------------------- REGUNATHAN, S/O.THOTTINGAL KRISHNAN VAIDYAR, THOTTINGAL HOUSE, BYPORE AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT(S): --------------- 1. P.RAMANI, D/O.KAMALAKSHI, W/O.I.MOHANDAS, AGED 57 YEARS, 2/106 J, SREYA, UDAYA KURUMBA ROAD, KARAPARAMBA, KATCHERI AMSOM DESOM, KOZHIKODE TALUK. 2. P.VIJAYALAXMI @ SUSHEELA, AGED 55 YEARS, D/O.KAMALAKSHI, W/O.C.P.BABU, 12/302 JEETH CHAMUNDIPARAMBA, ERANHIPALAM KATCHERI AMSOM AND DESOM, KOZHIKODE TALUK. 3. P.DEVADAS, S/O.KAMALAKSHI, AGED 52 YEARS, (E.F.4/5931 KERALA STATE HOUSING BOARD COLONY, BILATHIKULAM, ERANHIPPALAM), KATCHERI AMSOM DESOM, KOZHIKODE TALUK. 4. P.GEETHA, D/O.KAMALAKSHI, W/O.LATE M.KAMALRAJ, AGED 55 YEARS, 105/1, SANGEETH, VARADHAMMAL GARDENTS, KIL PAK, CHENNAI-10. OP (C) 608/2011 -2- 5. THOTTINGAL DEVADASAN, AGED 85 YEARS, S/O.KUTTAI, 12/128, THOTTINGAL HOUSE, KURUKKAL KAVU ROAD, BEYPORE, BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK, PIN 673 015. 6. THOTTINGAL LAKSHMIKUTTY, AGED 61 YEARS, W/O.BHASKARAN, RTD.SCHOOL TEACHER, PADINJATTAYIL HOUSE, CHALIYAM, KADALUNDI AMSOM, PAZHAYANNUR DESOM, KOZHIKODE TALUK. 7. THOTTINGAL SYAMALA, AGED 55 YEARS, W/O.LATE SAHADEVAN, 17/216, PADIJARA KARIPPATH, NALLORE FAROKE AMSOM, NALLOOR DESOM, POST FAROKE, KOZHIKODE TALUK. 8. SUSHEELA, AGED 56 YEARS, W/O.LATE PURUSHOTHAMAN, 12/302 THOTTANGAL HOUSE, GURIKKAL KAVU ROAD, BEYPORE AMSOM DESOM, KOZHIKODE TALUK, PIN 673 631. 9. SHYAMA PRASAD, AGED 36 YEARS, S/O.LATE PURUSHOTHAMAN, THOTTANGAL HOUSE, GURIKKALL KAVU ROAD, BEYPORE AMSOM DESOM, KOZHIKODE TALUK, PIN 673 015. 10. PRASANTH, AGED 30 YEARS, S/O.LATE PURUSHOTHAMAN, THOTTANGAL HOUSE, GURIKKALL KAVU ROAD, BEYPORE AMSOM DESOM, KOZHIKODE TALUK, PIN 673 015. 11. PRASHOB, AGED 28 YEARS, S/O.LATE PURUSHOTHAMAN, THOTTANGAL HOUSE, GURIKKALL KAVU ROAD, BEYPORE AMSOM DESOM, KOZHIKODE TALUK, PIN 673 015. 12. PRAJEESH, AGED 24 YEARS, S/O.LATE PURUSHOTHAMAN, THOTTANGAL HOUSE, GURIKKALL KAVU ROAD, BEYPORE AMSOM DESOM, KOZHIKODE TALUK, PIN 673 015. 13. PRABHEESH, AGED 21 YEARS, S/O.LATE PURUSHOTHAMAN, THOTTANGAL HOUSE, GURIKKALL KAVU ROAD, BEYPORE AMSOM DESOM, KOZHIKODE TALUK, PIN 673 015. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- O.P.(C).No.608 of 2011 --------------------------------------------- Dated this the 11th day of February, 2011 JUDGMENT The reliefs prayed for in the Original Petition are the following : "(i) declare that the entire proceedings in the final decree pursuant to Exhibit P4 decree is illegal. (ii) issue an order or direction, directing the respondents to maintain status quo of the properties. (iii) Direct the learned Munsiff Court II, Kozhikode to consider I.A.No.559/10 the petition to set aside the final decree passed in O.S.No.498/89. (iv) issue such other reliefs which this Hon'ble Court may be pleased to allow the petitioner to be raised and which this Hon'ble Court may deem fit and proper to allow in the facts and circumstances of the case." 2. The petitioner was the third plaintiff in O.P.(C) No.608/2011 2 O.S.No.205 of 1978 on the file of the Sub Court, Kozhikode. The suit was filed for partition. It is stated that a preliminary decree was passed in the case. There were Appeal and Second Appeal and in the Second Appeal, shares were modified. It is stated by the counsel for the petitioner that no final decree application was filed in that case. 2. It is stated that during the pendency of S.A.No.124 of 1985, which arose out of O.S.No.205 of 1978, one Kamalakshi filed O.S.No.498 of 1989 on the file of the Munsiff's Court, Kozhikode claiming a 1/4th share in the very same property which is involved in O.S.No.205 of 1978. In O.S.No.498 of 1989, a preliminary decree was passed as evidenced by Exhibit P4 dated 25th August, 1993. The operative portion of the decree is as follows : "That the property to be obtained by the first defendant as per final decree passed in O.P.(C) No.608/2011 3 O.S.No.205 of 1978 be divided into six equal shares and one such share be allotted to the plaintiff." 3. The contention of the petitioner is that no final decree was passed in O.S.No.205 of 1978 and therefore, the legal representatives of the plaintiff in O.S.No.498 of 1989 are not entitled to get a final decree passed in O.S.No.498 of 1989. However, a final decree was passed in O.S.No.498 of 1989. The final decree is not produced. During the course of arguments, it is revealed that the delivery of the property was also taken as per the final decree in O.S.No.498 of 1989. 4. It is stated in the Original Petition that Purushothaman, the third defendant in O.S.No.498 of 1989 died during the pendency of the final decree proceedings in O.S.No.498 of 1989. However, his legal representatives were not impleaded. It is stated in the Original Petition that legal O.P.(C) No.608/2011 4 representatives of Purushothaman filed I.A.No.559 of 2010 to set aside the final decree passed in O.S.No.498 of 1989. That I.A. is not produced in the Original Petition. At any rate, the legal representatives of Purushothaman have not approached this Court. The petitioner was the fifth defendant in O.S.No.498 of 1989. Apparently, he did not raise a contention in the final decree proceedings that the legal representatives of Purushothaman were not impleaded. Therefore, I do not think that prayer No.(iii) to issue a direction to the Munsiff Court-II, Kozhikode to consider I.A.No.559 of 2010 in O.S.No.498 of 1989 need be considered at the instance of the petitioner. 5. As regards, relief No.(i), the remedy of the petitioner is to file an Appeal against the final decree. When an Appeal is maintainable against the final decree, the petitioner is not entitled to invoke the jurisdiction of this Court under Article 227 of the Constitution of India to get a declaration that the O.P.(C) No.608/2011 5 final decree proceedings are illegal. So also relief No.(ii) is not maintainable since the petitioner has an effective alternative remedy of filing an Appeal against the final decree. For the aforesaid reasons, the Original Petition is dismissed. K.T.SANKARAN JUDGE csl