IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 38 of 2007()
1. JANAKI, D/O.LATE KRISHNAN,
... Petitioner
Vs
1. E.K.SUMITHRA, W/O.UNNIYAPPAN,
... Respondent
2. RADHAKRISHNAN, S/O.LATE
3. SWAYAMPRABHA, W/O.CHANDRAN,
For Petitioner :SRI.RAJESH SIVARAMANKUTTY
For Respondent :SRI.O.RAMACHANDRAN NAMBIAR
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice V.GIRI
Dated :20/08/2007
O R D E R
J.B.Koshy & V.Giri, JJ.
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F.A.O.No.38 of 2007
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Dated this the 20th day of August, 2007.
JUDGMENT
Giri,J.
First respondent herein filed O.S.No.289 of 2000 before the
Sub Court, Palakkad seeking partition of the plaint schedule
properties into three equal shares and allotment of one such
share to the plaintiff. Plaint ‘A’ schedule properties are landed
properties. Plaint ‘B’ schedule is described as value of the trees
cut and removed. Defendants were set ex parte and an ex parte
decree came to be passed on 27.6.2001. I.A.No.1994 of 2003
was filed by the first defendant, the appellant herein, for setting
aside the ex parte decree. The said application also came to be
dismissed for absence of the first defendant, petitioner, on
4.11.2006. Appeal has been preferred by the first defendant
against the said order. It was admitted by both sides that the
FAO 38/07 -: 2 :-
dispute is now confined to plaint ‘B’ schedule property, which is
described as the value of the trees cut and removed. Question as
to what would be the value of such trees, if any, and as to who
was responsible for cutting and removal of the trees are still
disputed matters. We note that the first defendant alone filed an
application to get the ex parte decree set aside and it is only the
first defendant, who has come up in appeal before this Court as
well.
2. On going through the records and after hearing counsel
on both sides, we are of the view that the ex parte decree is
liable to be set aside. It would be more appropriate that the
parties are permitted to contest the matter. We have already
recorded the submission made on behalf of the appellant – first
defendant that the pending dispute is only with regard to plaint
‘B’ schedule property. Nevertheless, it may not be proper to set
aside the ex parte decree only in part.
3. For the reasons mentioned above, appeal is allowed,
order of the court below is set aside, consequently I.A.No.1994 of
2003 filed before the court below will stand allowed. Court below
shall proceed further with the suit. Court below shall also take
FAO 38/07 -: 3 :-
note of the fact that the appellant – first defendant has made it
clear before this Court that the current dispute is only with regard
to plaint ‘B’ schedule property.
Appeal is allowed on the above terms. No costs.
J.B.Koshy,
Judge.
V.Giri,
Judge.
ess 20/8