IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 WP(C).No. 24227 of 2007(H) --------------------------------------- OS.NO.758/1996 OF PRL.SUB COURT,THRISSUR. .................... PETITIONERS: --------------------- 1. V.RAJALEKSHMI, D/O.LATE VENKITESWARA IYER, 26, V. EAST STREET, KAMARAJ NAGAR, THIRUVANNAYUR, MADRAS-41. 2. V.KANAKA RAMAN, W/O.L.S.RAMAN & D/O.LATE A.S.VENKATESWARA IYER, 26, V. EAST STREET, KAMARAJ NAGAR, THIRUVANNAYUR, MADRAS-41. BY ADVS. MR.P.B.SAHASRANAMAN, MR.K.JAGADEESH, MR.T.S.HARIKUMAR. RESPONDENTS: ------------------------ 1. C.V.BALASUBRAMANIAN, S/O.LATE SRI. C.R.VENKITESWARA IYER AND LATE AMMINI AMMAL, NO.II, NAGATHAMMAL KOIL STREET, MADRAS-600 080, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER SRI.P.K.EASWARAN, NO.II, NAGATHAMMANKOIL STREET, EXTENSION, MADRAS-600 083. 2. P.K.GOPALAKRISHNAN, S/O.KRISHNA IYER, V/19, T.C.NO.17/1265, VIVEKANANDA NAGAR, PANGODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER SRI.P.K.EASWARAN, NO.II, NAGATHAMMAMKOIL STREET, ENTENSION, MADRAS-600 083. 3. P.K.SUBHALAKSHMI, D/O.ANNAPOORNI, V/19, T.C.NO.17/1265, VIVEKANANDA NAGAR, PANGODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER SRI.P.K.EASWARAN, NO.II, NAGATHAMMAMKOIL STREET, ENTENSION, MADRAS-600 083. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24227/2007-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE I.A. NO. 2085/2007 ALONG WITH THE AFFIDAVIT, DTD. 27/03/2007. EXT.P.2: COPY OF THE I.A. NO. 2084/2007 ALONG WITH THE AFFIDAVIT DTD. 27/03/2007. EXT.P.3: COPY OF THE I.A. NO.2086/2007 ALONG WITH THE AFFIDAVIT DTD. 27/03/2007. EXT.P.4: COPY OF THE OBJECTION IN I.A. 2085/2007 DTD. 04/07/2007. EXT.P.5: COPY OF THE OBJECTION IN I.A. 2084/2007 DTD. 05/07/2007. EXT.P.6: COPY OF THE OBJECTION OF I.A. 2086/2007 DTD. 05/07/2007. EXT.P.7: COPY OF THE ORDER IN I.A. 2086/2007 IN I.A. 2263/2001 IN O.S. 758/1996 DTD. 23/07/2007. EXT.P.8: COPY OF THE COMMON ORDER IN I.A. 2084/2007 AND I.A. NO.2085/2007 IN I.A. NO.2263/2001 IN O.S. 758/1996 DTD. 23/07/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.24227 OF 2007 -------------------------------- Dated this the 7th day of January 2010 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ of certiorari or other appropriate writ order or direction to call for the records leading to Ext.P7 and Ext.P8 and quash the same. ii) Such other reliefs which this Hon'ble Court deems fit and necessary in the circumstances of the case and the costs of this case. 2. Petitioners are the defendants in O.S No.658 of 1996 on the file of the Principal Sub Court, Thrissur. Above suit is one for partition in which a preliminary decree was passed as early on 31/10/2000. That preliminary decree was challenged in appeal by the petitioners/defendants as A.S No.498 of 2001 before this court. That appeal was dismissed on 01/07/2005 confirming the decree passed by the trial court. Thereafter final decree was passed on 30/09/2005 accepting the commission report and plan prepared by the advocate commissioner specifying the allotment to the sharers in accordance with the preliminarily decree. After the respondents/plaintiffs moved for execution on getting the final W.P.(C).No. 24227 OF 2007 Page numbers decree endorsed in stamp paper paying the required sum thereof, the present petitioners/defendants approached the court with three petitions, one for reviewing the final decree, the second for condoning the delay of 512 days in moving that review petition and the third for remitting the commission report. The learned Sub Judge, after hearing both sides, dismissed the application moved for remitting the commission report vide Ext.P7 order. The review petition and also the petition to condone the delay in moving for review, both of them, were dismissed vide Ext.P8 order. Challenge in the writ petition is against Ext.P7 and Ext.P8 orders invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Though notice given, the respondents have not entered appearance. I heard the learned counsel for the petitioner. The learned counsel requested for an opportunity to have a decision on merits by reopening the final decree contending that the petitioners who were settled at Chennai did not get an effective opportunity in the final decree proceedings to present their case and that caused severe hardship, loss and injury to them. Valuation made with W.P.(C).No. 24227 OF 2007 Page numbers respect to the shares allotted to the plaintiffs and defendants is grossly disproportionate and a larger extent of land is allotted towards the plaintiff's share is the further submission of the counsel. So far as the allotment of share is concerned, it can be only in tune with the preliminary decree and if at all in the final decree there was any allotment flouting the shares fixed in preliminary decree, then, remedy of the petitioners was to challenge the final decree by way of an appeal. In Ext.P8 order also I do not find any case canvassed that share allotment made and separation ordered under the final decree was not in tune with the preliminary decree passed by the court earlier. The question of sufficient opportunity not being extended to the petitioners/defendants has to be considered in the backdrop that the final decree proceedings were kept stalled on account of an appeal till it was dismissed on 01/07/2005. Petitioners have no case that they have no knowledge of the dismissal of the appeal preferred against the preliminary decree. Once the appeal is dismissed, they should be posted with knowledge that the final decree proceedings would continue as there was no stay in operation. So much W.P.(C).No. 24227 OF 2007 Page numbers so, the reason canvassed that they are permanently settled at Chennai and so much so they could not effectively present their case in the final decree proceedings on the face of it is unacceptable. After going through Ext.P8 order, I find no interference with the conclusion formed by the learned Sub Judge that the petitioners have not made sufficient ground for reviewing the final decree already passed is called for. When Ext.P8 order is found to be unassailable, the merit of Ext.P7 order need not be considered separately as it has no independent existence. So much so, the challenge against Ext.P7 and Ext.P8 orders is found unsustainable. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv