IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 RSA.No. 942 of 2008(D) -------------------------------- [AS.NO.57/2007 OF SUB COURT, TIRUR, OS.NO.16/1997 OF MUNSIFF'S COURT, TIRUR] .................... APPELLANTS/APPELLANTS/RESPONDENTS IN I.A. 2304/00/ DEFENDANTS IN O.S.16/97 : ------------------------------------------------------------------------------------- 1. AMINA, 59 YEARS, D/O. NADUTHODI UNNENKUTTY, MELMURI AMSOM, KAREKKAD DESOM. 2. ADIYATTIL PATHUKUTTY, AGED 63 YEARS, S/O. NADUTHODI MUHAMMED, MELMURI AMSOM, KREKKAD DESOM. 3. ABOOBACKER, AGED 35 YEARS, S/O. NADUTHODI MUHAMMED, MELMURI AMSOM, KAREKKAD DESOM. 4. PATHUMMA, AGED 37 YEARS, D/O. NADUTHODI MUHAMMED, MELMURI AMSOM, KAREKKAD DESOM. 5. THITHEEMA, AGED 31 YEARS, D/O. NADUTHODI MUHAMMED, MELMURI AMSOM, KAREKKAD DESOM. BY ADV. SMT.A.PARVATHI MENON. RESPONDENT/RESPONDENT/PETITIONER IN I.A. 2304/00/PLAINTIFF IN O.S. 16/97:- ---------------------------------------------------------------------------------------------------------------------- NADUTODI MOIDEENKUTTY, AGED 62 YEARS, S/O. UNEENKUTTY, MELMURI AMSOM, KAREKKAD DESOM, TIRUR TALUK. BY ADVS. SRI.K.RAMACHANDRAN, SRI.S.SREEDEV. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2010, THE COURT ON 09/06/2010 DELIVERED THE FOLLOWING: R.S.A. NO. 942/2008-D: ORDER ON I.A. NO. 2171/2008 IN R.S.A. NO. 942/2008-D DISMISSED 09/06/2010. SD/- P.BHAVADASAN, JUDGE. //TRUE COPY// prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 942 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2010. JUDGMENT O.S. 16 of 1997 is a suit for partition. A preliminary decree was passed on 30.6.2000. I.A. 2304 of 2000 was filed for passing of the final decree. It is claimed that the appellants herein had filed I.A. 1360 of 2002 to have the commission report and plan set aside and to remit the same. That application was allowed and the appellants were directed to deposit Rs.1000/- towards commission batta on 22.11.2004. 2. The commissioner had not filed a report and plan on remitting the same. Only when the appellants received notice in E.P. 108 of 2007, they came to know that final decree application I.A. 2304 of 2000 had been allowed and a final decree had been passed. 3. The appellants preferred an appeal before the court below. As the appeal had been filed out of R.S.A.942/2008. 2 time, a delay condonation petition was also filed. However the lower appellate court was disinclined to condone the delay, consequently the petition was dismissed. Dismissal of the appeal followed. It is against the said orders that the present Second Appeal is filed. 4. It is seen from the records that on 7.8.2009 this court had passed an order, which reads as follows: “The appellants 3, 4 and respondent are present. I had talked to the parties at length. The parties have agreed to settle the dispute. Certain suggestions were put to the parties. The parties agreed that the respondent/plaintiff shall be allotted 10 cents on south-western portion of the entire property which is part of plot f, g, h, b, j having an extent of 23.14 cents and 40 cents touching eastern boundary to be measured and marked from the w, v,e, d, c having 51.50 cents. The plot shall be earmarked and a fresh plan shall be produced. The parties also agreed that there shall be a way having 5 ft. to connect 10 cents and 40 cents allotted to the respondent/plaintiff and the way shall be earmarked starting from j point till the western boundary of 40 cents. R.S.A.942/2008. 3 The Village Officer, Karekkad Desom, Tirur Taluk shall prepare the plan after making suitable measurements for earmarkation of the said land. The parties shall pay Rs.1,500/- shared equally to the Village Officer. The plan shall be produced by the parties within a period of three weeks.” The records also indicate that pursuant to the above order, the Village Officer had measured the property and submitted a plan. Subsequent to the receipt of the plan and report, the case was posted on several occasions for hearing. At no point of time either the parties or counsel for the appellants showed any inclination to proceed with the matter. Finally on 31.5.2010 the case was posted for orders to 1.6.2010. On 1.6.2010 also neither the appellants nor their counsel was present before court. The appeal is dismissed for default. P. BHAVADASAN, JUDGE sb.