IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 RFA.No. 15 of 2011() -------------------- AGAINST THE ORDER DATED 22/07/2010 IN IA.1272/2008 IN OS.155/2007 of SUB COURT, PAYYANNUR .................... AAPPELLANT/2ND RESPONDENT/2ND DEFENDANT ----------------------------------------------------------- THAYALEPURAYIL SARAFUNNISA, W/O.G.S.MUHAMMED KUNHI, AZHEECKAL, EDACHAKKAI POST, UDINOOR VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 3/PLAINTIFF & DEFENDE ----------------------------------------------------------------- 1. THAYALEPURAYIL SHIHABUDEEN, S/O.P.K.ABDUL RAHIMAN HAJI, AZHEECKAL HOUSE, EDACHAKKAI POST, UDINOOR VILLAGE, HOSDURG TALUK, KASARAGODE DISTRICT-671357. 2. P.K.ABDUL RAHIMAN HAJI, S/O. LATE MOHAMMED HAJI, EDACHAKKAI KOKKAKADAVU, EDACHAKKAI POST, THRIKKARIPUR (VIA) UDINOOR VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT-671357. 3. THAYALEPURAYIL MUNEERUDDIN, S/O. P.K.ABDUL RAHIMAN HAJI, HOTEL REGENCY, D.NO.87/88, 1ST CROSS, 5TH MAIN OPP.THRIBHUVAN THEATRE, GANDHI NAGAR, BANGALORE,KARNATAKA STATE. R1 TO R3 BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.T.P.SAJID SMT.P.VANDANA SMT.P.S.MAHESWARI SRI.PHIJO PRADEESH PHILIP THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 13/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- R.F.A.No.15 OF 2011 ------------------------------------ Dated this the 13th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The second defendant in a suit for partition appeals against the final decree. Her contention in the appeal is confined to the extent of allotment. She did not contest the preliminary decree proceedings. She did not appear in the final decree proceedings or file objections to the Commissioner's report. Therefore, we would not have entertained this appeal. But, perusing the copy of the commissioner's report, we find that the commissioner did not issue any notice of his visit to the appellant on the premise that she was not served with notice in the appeal and had remained ex parte in the final decree proceedings. RFA.15/11 2 2.The thrust of the arguments on behalf of the appellant is that instead of making the allotment as has been done in the impugned final decree, the court below could have, or rather, ought to have, made allotments which would be convenient and beneficial to the enjoyment of the parties. Her learned counsel accordingly projects that the impugned final decree appears to be unworkable. 3.We are of the view that all the aforesaid contentions ought to be looked into by the court below since the proceedings have ended before the court below essentially without proper hearing and as noticed by the commissioner, with the appellant remaining ex parte. 4.For the aforesaid reasons, we set aside the impugned final decree and remit the case. The parties are directed to mark their appearance before the court below on 11.7.2011. The court below will provide an opportunity of hearing to the parties. It is also directed that no objection to the final RFA.15/11 3 decree application would be entertained, however, that objections, if any, as regards the commissioner's report would be considered by the court below, in accordance with law. The final proceedings in this case shall be completed within an outer limit of six months from the date of appearance of parties before the court below. In view of this judgment, it is unnecessary for the appellant to apply to have any order declaring her ex parte set aside. All what she needs to do is to mark her appearance before the court below on the basis of this judgment. The RFA is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.15/6.