The High Court of Kerala dismissed an original petition challenging the dismissal of an application to set aside an ex-parte decree in a partition suit. The court held that the petitioner's delay and lack of bona fides justified the lower court's refusal, noting her failure to produce the medical certifying officer.
The Original Petition is dismissed. No costs.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
WEDNESDAY, THE 26TH DAY OF SEPTEMBER 2012/4TH ASWINA 1934
OP(C).No. 2585 of 2012 (O)
OS.331/2004 of MUNSIFF COURT, OTTAPPALAM
PETITIONER(S):
DEVAYANI AMMA, AGED 77 YEARS
D/O. LATE KONIKKAL NADUVEETTIL CHIRUDEVI AMMA @ CHINNU AMMA VANIYAMKULAM AMSOM, KOTHAYOOR DESOM OTTPALAM TALUK.
BY ADVS.SRI.G.SREEKUMAR (CHELUR)
SRI.K.RAVI (PARIYARATH)
RESPONDENT(S):
OP(C) NO. 2585/2012
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 2585/2012
APPENDIX
PETITIONER(S) EXHIBITS
| EXT.P1 | A TRUE COPY OF THE LAWYER NOTICE ISSUED TO THE PETITIONER AT THE INSTANCE OF THE RESPONDENTS 1 & 2 DATED 28-10-03. |
|---|---|
| EXT.P2 | A TRUE COPY OF THE REPLY NOTICE SEND BY THE PETITIONER'S COUNSEL TOT HE RESPONDENTS 1 & 2 DATED 11-11-03. |
| EXT.P3 | A TRUE COPY OF THE PLAINT IN O.S. NO. 331/04 ON THE FILE OF MUNSIFF COURT OTTAPALAM 20-8-2004. |
| EXT.P4 | A TRUE COPY OF THE ORDER PASSED BY THE MUSIFF JUDGE OTTPALAM I.;A. NO. 739/06 DATED 20-1-07. |
| EXT.P5 | A TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF JUDGE OTTAPALAM I.A. NO. 739/06 DATED 20-1-07. |
| EXT.P6 | A TRUE COPY OF THE COMMON JUDGMENT PASSED BY THE LEARNED SUB JUDGE OTTAPALAM IN C.M.APPEAL NOS. 10-07 & 11/07 IN I.A. NO. 738/06 & 739/06 IN O.S. NO. 331/04 ON THE FILE OF MUNSIFF COURT, OTTAPALAM DATED 31-3-10. |
| EXT.P7 | A TRUE COPY OF THE DOCUMENT NO. 1281/1928 OF S.R.O OTTAPALAM DATED 2-5-1928. |
| EXT.P8 | A TRUE COPY OF THE DOCUMENT NO. 1180/1941 OF S.R.O. OTTAPALAM DATED 8-5-1941. |
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P.A. TO JUDGE.
V. CHITAMBARESH, J
OP(C) NO. 2585 OF 2012
Dated this the 26th day of September, 2012
JUDGMENT
The court below has concurrently refused to set aside the ex-parte decree in a suit for partition. The petitioner/first defendant did not file any written statement even though she had entered appearance. The first defendant did not thereafter participate in the proceedings leading to preliminary decree.
2
OP(C) No. 2585/2012
highly belated. The Civil Revision Petition filed with a delay of 549 days was dismissed as not maintainable. It is under these circumstances has the present Original Petition been filed.
The Original Petition fails and is dismissed. No costs.
V. CHITAMBARESH JUDGE
ncd
2 issues framed by the court
Whether the original petition to set aside the ex-parte decree in a partition suit should be allowed despite delay and lack of bona fides.
Whether the petitioner's failure to produce the medical doctor in court negates her claim of ill health for non-participation.
DEVAYANI AMMA
VATSALA
RAJALAKSHMI
USHA DEVI
KAMALAMMA
MURALLI
V. CHITAMBARESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
