IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24227 of 2007(H)
1. V.RAJALEKSHMI, D/O.LATE VENKITESWARA
... Petitioner
2. V.KANAKA RAMAN, W/O.L.S.RAMAN & D/O.LATE
Vs
1. C.V.BALASUBRAMANIAN, S/O.LATE SRI.
... Respondent
2. P.K.GOPALAKRISHNAN, S/O.KRISHNA IYER,
3. P.K.SUBHALAKSHMI, D/O.ANNAPOORNI,
For Petitioner :SRI.P.B.SAHASRANAMAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :07/01/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.24227 OF 2007
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Dated this the 7th day of January 2010
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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