ORDER
N. Krishnan Nair, J.
1. This revision is directed against the order dated 26.7.2001 of the Munsiff, Chavakkad in I.A. 2002/2000 in O.S. 300/1997.
2. The facts necessary for the disposal of this revision may be stated as follows: The revision petitioner is the 4th additional defendant in O.S. 300/1997. The suit is for partition and separate possession of the plaintiff’s share in the suit property. The petitioner was impleaded in the suit as the supplemental 4th defendant. Though the petitioner was impleaded as the additional 4th defendant in the suit, no summons was issued to him land he was also not declared exparte. The Court below passed a preliminary decree and an appeal preferred against the preliminary decree was also dismissed. When the plaintiff moved an application for passing a preliminary decree, the petitioner resisted the application contending that the preliminary decree is not binding on him since it was obtained behind his back. It was also contended by the petitioner that the property purchased by him and his wife is not liable for partition and the preliminary decree allowing the partition of the said property is clearly illegal. He further contended that he had constructed a two storeyed building in the property and his clinic is housed in the ground floor of the building. On these contentions, the petitioner wanted to reopen the preliminary decree. Though the court below accepted some of his contentions regarding item No. 2 scheduled to his counter statement, the court below did not accept his contention that item No. 1 scheduled to the counter statement is not at all partible. His prayer for reopening the preliminary decree was also rejected. The order is seriously challenged in this revision.
3. The learned counsel for the petitioner strongly contended that since no summons was issued to the plaintiff and the preliminary decree was passed beyond his back, the lower court ought to have found that the preliminary decree is void so far as the petitioner is concerned. According to the learned counsel, since no exparte decree was passed in this case, the petitioner cannot file an application for setting aside the preliminary decree and therefore, the lower court ought to have modified the preliminary decree. We placed much reliance on the decision of this Court in Sosamma Yohannan and Ors. v. Elias and Anr. (2001 (1) KLJ 235). On the other hand, the learned counsel for the respondents supported the order of the court below and urged that there is no ground for interference.
4. The question arising for consideration is whether the impugned order is sustainable. According to the learned counsel for the petitioner, since no summons was issued to the petitioner, the preliminary decree is void so far as the petitioner is concerned. His further contention is that the petitioner is not in a position to file an application for setting aside the exparte decree, since he was not declared exparte. I cannot agree. Admittedly, though the petitioner was impleaded as additional 4th defendant, no summons was issued to him. It is also true that he was not declared exparte before passing the decree. But, the contention that the exparte decree passed without issuing summons and in contravention of the Civil Procedure Code is a nullity cannot be accepted. In this connection, it is relevant to note the decision of a learned
single Judge of this Court in Bhargavi Amma v. Kuttikrishnan (1966 KLT 194). In that case, the wife had filed a petition against her husband claiming maintenance for herself and her child. An exparte order of maintenance was passed against the husband. Subsequently, the husband obtained a decree from a Civil Court at Jalgoan declaring that the marriage between himself and the petitioner had been dissolved by customary divorce. On the strength of the decree, the husband filed an application for cancellation of the maintenance. The Sub Divisional Magistrate passed an order disallowing maintenance to the petitioner and fixing Rs. 12/- a month as maintenance for the child. Aggrieved by the order, the wife approached this Court. The learned counsel for the wife contended that the decree passed by the Civil Court at Jalgoan was a nullity since summons was not ordered and summons was not served on the wife. This Court held that though the wife was really unaware of the suit, she cannot get rid of the effect of the decree by merely saying that she was not served with summons. This Court further held that she ought to have applied to have the decree set aside, if she complained only of non-service of summons. It is relevant to note the following observation of this Court in the above case: “But the petitioner’s contention that an exparte decree passed without issuing summons and in contravention of the provisions of the Civil Procedure Code is an absolute nullity cannot be accepted. It is only an irregular exercise of jurisdiction to have passed a decree in violation of the rules, but all the same the court had inherent jurisdiction to pass a decree in the suit. A decree passed by a competent authority irregularly is only voidable and unless and until it is duly annulled it would have all the force of a valid decree.” I am in full agreement with the view expressed by the learned Judge. In this case, though the petitioner was hot declared exparte, he is entitled to file an application for setting aside the decree.
5. The learned counsel for the petitioner placed strong reliance on the decision of this Court in Sosamma Yohannan and Ors. v. Elias and Anr. (2001 (1) KLJ 235). According to me, the decision referred to by the learned counsel would not help the petitioner in this case. No doubt, it has been held in that case that a preliminary decree passed in the case can be amended if the circumstances justify the same. But, the party seeking reopening of amendment of the preliminary decree should file necessary application for the purpose. It has also been held that instead of doing so, they cannot intervene in the final decree proceedings where what is intended is only to give actual allotment of shares as contemplated in the preliminary decree. In this case, admittedly, the petitioner has not so far filed any application seeking reopening and amendment of the preliminary decree or for passing another preliminary decree. Only in his counter to the final decree application he seeks to re-open the preliminary decree which according to the decision relied on by the learned counsel is not permissible.
6. In this case, it is true that the preliminary decree was passed without giving an opportunity of being heard to the petitioner. As correctly pointed out by the learned
counsel for the petitioner, an order or decree passed against a person without his knowledge is against the principles of natural justice. But, he cannot avoid the order or decree by merely saying that the order or decree was passed without notice to him. Nobody has a case that the court had no jurisdiction to pass the preliminary decree. No doubt, there was non-compliance with the procedure prescribed for the exercise of the jurisdiction since the petitioner was not served with summons. The petitioner can resort to the remedies available to him under law.
For the reasons stated above, I am not inclined to interfere with the impugned order. This revision is groundless and is dismissed.