IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 753 of 2009()
1. SABU VARGHESE,
... Petitioner
Vs
1. T.K. KOCHANDI VAIDYAN,
... Respondent
2. MRS. ALICE BABU LUKOSE,
3. JACOB T. KOSHY, S/O. KOCHUKOSHY VAIDYAN,
4. T.K. OOMMUMMEN VAIDYAN,
5. T.K. THOMAS VAIDYAN,
6. T.K. ALEXANER VAIDYAN,
7. SAJAN T. KOSHY, AGED 45 YEARS,
8. MRS. RACHEL JOEMON,
9. T.K. GEORGE VAIDYAN,
For Petitioner :SRI.M.P.RAMNATH
For Respondent :SRI.SOJAN JAMES ~CAVEATOR
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :07/12/2009
O R D E R
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
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R.F.A.No.753 of 2009-D
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Dated, this the 7th day of December, 2009
J U D G M E N T
K.M.Joseph, J.
Appellant challenges the order passed allowing a
petition filed by respondents 1 to 8 under Order 38 Rule 8
read with Order 21 Rule 58 CPC. We heard the learned
counsel appearing on behalf of the parties. The impugned
order reads as under:
“Prays for objection. Prayer rejected as N.F.T was
ordered. So petition is allowed subject to the
deposit of Rs.1,00,000/- or sufficient security.
For compliance to 4.12.2009.”
2. According to the appellant, the claim petition
was first posted before the Sub Court on 13.10.2009. The
counsel for the appellant sought time for filing objection to the
petition. The case was posted to 4.11.2009. It is the case of
the appellant that he could not file objection to the application
as he was in Bangalore in connection with the death of a
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relative. He filed I.A.3750/2009 stating the reason for not
being able to file objection. The court below did not grant
time, and, it is stated that the order is passed as aforesaid.
The plaint claim, according to the appellant as on date is more
than Rs.25 lakhs. Learned counsel for respondents 1 to 8
would contend that the case was posted twice. He would
further contend that the attempt of the appellant is to see
that respondents 1 to 8 are disabled from effecting partition
on the basis of attachment of 1/9th share of the 9th
respondent/sole defendant. It is submitted that copy of the
petitions were not served on respondents 1 to 8. He would
further submit that actually Rs.1 lakh is shown in the order
because the value of the property was shown as Rs.50,000/-.
He further submits that respondents may be permitted to
partition the property and he further submits that 1/9th share
will be allotted to the 9th respondent/sole defendant.
3. When a claim petition is filed under Order 38
Rule 8 it is to be disposed of under Order 21 Rule 58. The
application filed by respondents 1 to 8 was to lift the
attachment or to permit them to execute the partition. Since
RFA 753/2009 -3-
the prayer for further grant of time was rejected the petition
to lift attachment was allowed. In this case, we notice that
the petition is allowed for the reason that no further time was
granted. Proceeding on the basis that there is some laches on
the part of the appellant we feel that substantial interest of
justice requires there must be adjudication in respect of the
matter as is contemplated in law. We also feel that
respondents 1 to 8 should be permitted to seek partition by
reserving the due share of 9th respondent. This they can do
by means of producing a draft partition in which the appellant
can raise his objections also. But the order allowing the
appeal cannot be an unconditional order.
Accordingly, the appeal is allowed and the
impugned order is set aside on condition that the appellant
pays Rs.4,000/- as costs to the counsel for respondents 1 to 8
in this Court and produces a memo to that effect within two
weeks from today. Upon the cost being paid,
I.A.No.3132/2009 filed by respondents 1to 8 will be taken up
and decided by the Sub Court, Kollam, in accordance with law
as early as possible and at any rate on or before 31.1.2010.
RFA 753/2009 -4-
We make it clear that it will be open to respondents 1 to 8 to
produce draft of the proposed partition between the sharers
before the court in which case the appellant will be given
opportunity to raise his objections to the said application and
appropriate orders may be passed by the Sub Court, Kollam
in accordance with law. In case the appellant does not pay
the costs the appeal will stand dismissed.
(K.M.JOSEPH)
JUDGE.
(M.L.JOSEPH FRANCIS)
JUDGE.
MS