IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 RP.No. 264 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN CRP.141/2007 Dated 16/02/2009 .................... REVIEW PETITIONER(S): RESPONDENTS: ---------------------------------- 1. FATHIMABI, W/O.LATE ABDUL MAJEED, MAJALU MULINJA VILLAGE, P.O.UPPALA, KASARAGOD. 2. MOHAMMED NIZAM, S/O.LATE ABDUL MAJEED, -DO-. 3. MOHAMMED RIYAZ, S/O.LATE ABDUL MAJEED, -DO-. 4. NASEEM BANU, D/O.LATE ABDUL MAJEED, -DO-. BY ADV. SRI.K.V.SOHAN RESPONDENT(S): REVISION PETITIONERS: ------------------------------------ 1. AFROZ BANU, W/O.LATE SAYYAD YOUSUF, RESIDING AT RAILWAY STATION ROAD, P.O.UPPALA, UPPALA VILLAGE, KASARAGOD TALUK. 2. ZAIKAYA BANU, D/O.LATE SAYYAD YOUSUF, -DO-. 3. ASEENA BANU, D/O.LATE SAYYAD YOUSUF,-DO- 4. ZAFARULLA, S/O.LATE SAYYAD YOUSUF,-DO- 5. AZIMULLA, S/O.LATE SAYYAD YOUSUF,-DO- 6. ENAITHULLA, S/O.LATE SAYYAD YOUSUF,-DO- THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.P.No. 264 of 2009 in C.R.P No.141 of 2007 ---------------------------------------- Dated this the 16th day of March, 2009 ORDER The review petitioners are the respondents in C.R.P. No. 141 of 2007. 2. O.S. No.326/1998 filed before the Munsiff Court, Kasargod for rendition of accounts of a partnership firm was decreed exparte. The preliminary decree was passed on 21.12.1998 and final decree on 30.7.2001 and the order in execution petition on 8.4.2002. In E.P. 54/2002 the property in R.S. No. 74/4 of Mulinja Village was delivered over to the respondents. The respondents herein are the plaintiffs and the review petitioners are the defendants in the said suit. 3. After 53 months the defendants filed I.A. 1161/2003 and 1162/2003 in O.S. 326/1998 for setting aside the exparte preliminary decree and to condone the delay of 53 months in filing the petition for setting aside the exparte preliminary decree as well as the final decree. The order in execution was passed on 8.4.2002 . The application for condonation of delay and the petition for setting aside the ex-parte decree were considered on merits in detail by the trial court and held that the defendants were served with summons in every stage i.e in the preliminary decree, final decree and execution . In revision very same R.P.No. 264 of 2009 in C.R.P No.141 of 2007 -2- questions were agitated again and this Court held that by no stretch of liberal approach it can be said that the defendants were not served with summons and not aware of the proceedings in the suit ,in the light of the records available as well as in the nature of evidence adduced by the parties. 4. The review petition was filed mainly challenging the order passed by this Court in C.R.P No. 141 of 2007 stating that this Court omitted to mention the questions of law based on the decisions reported in Commissioner of Income Tax , Madhya Pradesh Vs. Seth Govindram Sugar Mills AIR 1966 SC24, N.Balakrishnan Vs. M.Krishnamurthy AIR 1998 SC 3222, Naresh Chandra Agarwal Vs.Bank of Baroda and others AIR 2001 SC 1253 and Bogidhola Tea & Trading Co.Ltd & Another Vs. HiraLal Somani AIR 2008 SC 911 5. The lower appellate court considered the decisions reported in N.Balakrishnan Vs. M.Krishnamurthy AIR 1998 SC 3222,and in Commissioner of Income Tax Vs Govind Ram Sugar Mills AIR 1968 SC 24 for deciding the question whether the delay of 53 months in filing an application for setting aside the exparte decree can be allowed or not. . The decisions cited by the review petitioners are the same decisions considered by the lower appellate court in reversing the order passed by the trial court. The contention of the review petitioners is that the delay ought to have been condoned for the sole reason that the preliminary R.P.No. 264 of 2009 in C.R.P No.141 of 2007 -3- exparte decree passed by the trial court is illegal . I have also considered the question of condoning the delay in the context of the merits of the case as well. The question arise for consideration is that where a preliminary decree passed on 21.12.1998, final decree on 30.7.2001 and order in execution petition on 8.4.2002 can be set aside or not after condoning the delay of 53 months. The evidence unmistakably points out that the defendants/review petitioners received summons on all stages of the suit and remained absent and to appear before the trial court. Attempts were made to wipe out the said inaction by the defendants by contending before the trial court that no delivery was effected by the Amin and that they were still in possession of the property The said contention was also found to be incorrect So finding that there is no valid grounds were made out to condone the delay, the trial court. passed orders in the right perspective. The request of the counsel for the petitioners to review the order and the challenge against the finding of the trial court in all respects cannot be accepted. In the circumstances, I find no reason to interfere with the order passed by this Court in C.R.P No. 141 of 2007. Hence this review petition is dismissed. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.P.No. 264 of 2009 in C.R.P No.141 of 2007 ---------------------------- ORDER 16th March, 2009