Dismissed

O.K.Kanakaraj v. C.K.Premavally

Kerala HC17 Sept 2012OP(C)/2783/2012

Case brief

AI extract

What is this about?

The High Court of Kerala set aside an order refusing to condone a 12-day delay filed via a Civil Miscellaneous Appeal (O. 43 R. 1) against a partition decree. The court held the M.A. was not maintainable since Section 96. It directed the lower court to convert the M.A. into an appeal suit to adjudicate the delay and merits.

What did the court decide?

Impugned orders refusing to condone delay were set aside. The Civil Miscellaneous Appeal was sent back for conversion into an appeal suit.

O.K.Kanakaraj Vs C.K.Premavally — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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MONDAY, THE 17TH DAY OF SEPTEMBER 2012/26TH BHADRA 1934 OP(C).No. 2783 of 2012 (O) -------------------------CMA.45/2010 of PRL.S.C.,THALASSERY

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PETITIONER(S):

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O.K.KANAKARAJ, AGED 60 YEARS S/O.LATE O.N. BALARAM, RESIDING NEAR CHALAD TEMPLE KANNUR PRESENTLY RESIDING AT LEELAYAM, CHOVVA KANNUR-670006. BY ADVS.SRI.V.R.KESAVA KAIMAL SMT.C.S.RAJANI

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RESPONDENTS:

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C.K.PREMAVALLY, AGED 61 YEARS

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D/O.LATE O.N.BALARAM, SRINAGAR, B.R.PURAM

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PODAMEDU, COIMBATORE

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PRESENTLY RESIDING AT SATPRADHA

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OPP.KOYILI HOSPITAL, TALAP, KANNUR-670002.

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SUGANDA DEEPA @ DEEPA @ DEEPA, AGED 32 YEARS

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D/O.SUGATHAN, ENGINEER, SRINAGAR

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B.R.PURAM, PODAMEDU, COIMBATORE

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PRESENTLY RESIDING AT SATPRADHA

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OPP.KOYILI HOSPITAL, TALAP, KANNUR-670002.

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P.M.SUGATHAN, S/O.BAPPUTTY, ENGINEER, KALLAYI AMSOM PUNNOL DESOM PRESENTLY RESIDING AT SATPRADHA OPP.KOYILI HOSPITAL, TALAP. KANNUR 67002.

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PUTHUKKUDY VADAVTHI CHANDRAN, , AGED 60 YEARS S/O.KRISHANAN, DOCTOR NEAR TELY HOSPITAL THALASSERY-670103.

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PARAKANDIYIL SUJATHA, , AGED 52 YEARS

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W/O.DR,P.V.CHANDRAN, NEAR TELY HOSPITAL

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THALASSERY-670103.

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SUDEEP @ C.K.VIVEK, AGED 32 YEARS

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S/O.VIJAYARAGHAVAN HOUSE NO.18. CHOVVA HOUSING COMPLEX KANNUR-670006.

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NIVEDITHA BALRAM, , AGED 81 YEARS

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W/O.C.N.BALRAM, LEELAYAM, KANNUR-670006.

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OP(C) 2783/12

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O.K.KANAKRANI, , AGED 49 YEARS

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D/O.LATE O.N.BALARAM

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HOUSE NO.18.CHOVVA SHOPPING COMPLEX KANNUR

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PRESENTLY AT LEELAYAM, CHOVVA, KANNUR-670006.

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O.K.VINAYARAJ,, AGED 56 YEARS

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S/O.LATE O.N.BALRAM, PROPRIETOR, KANNAN AUTOMOBILES LEELAYAM, KANNUR 670001.

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P.M.DAMODARAN, , AGED 52 YEARS

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S/O.BAPPUTTY, PURAKANDIYIL, KALLAYI AMSOM PUNNOL DESOM, THALASSERY -670101.

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O.K.PREMARAJ,, AGED 52 YEARS

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S/O.LATED O.N.BALARAM, MANAGER, ROCK WOOD ESTATE

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MARCARA, KODAGU, KARNATAKA

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PRESENTLY RESIDING AT 56, CHANDRAPPA BUILDING BANGALORE-560091.

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O.K.DINARAJ,. , AGED 51 YEARS S/O.LATE O.N.BALARAM, ADVOCATE, LEELAYAM CHOVVA, KANNUR-670006.

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R11-R12 BY ADV. SMT.C.DEVIKA RANI KAIMAL BY ADV. SRI. GRACIOUS KURIAKOSE

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C)NO.2783/12

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APPENDIX

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PETITIONER(S) EXHIBITS:

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EXT.P1 TRUE COPY OF THE COUNTER DATED 30.05.2008 FILED BY THE PETITIONER IN I.A.896/2008.

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EXT.P2 TRUE COPY OF THE JUDGMENT DATED 29/08/03 IN A.S.NO.26/00 ON THE FILES OF SUB COURT OF THALASSERY.

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EXT.P3 TRUE COOPY OF THE ORDER DATED 08.06.10 IN I.A.NO.896/2008.

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EXT.P4 TRUE COPY OF THE MEMORANDUM OF APPEAL NO.45/2010 BEFORE THE SUB COURT OF THALASSERY.

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EXT.P5 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION TO CONDONE THE DELAY IN I.A.NO.2671/2010 IN C.M.A.NO.45/2010.

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EXT.P6 TRUE COOPY OF THE COUNTER DATED 29.11.2010 SUBMITTED BY THE THIRD RESPONDENT TO EXT.P5.

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EXT.P7 TRUE COPY OF THE ORDER DATED 20/03/2012 IN I.A.NO.2671/10 IN C.M.A.NO.45/10.

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EXT.P8 TRUE COPY OF THE JUDGMENT DATED 20/03/2012 IN C.M.A.NO.45/2010.

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RESPONDENTS' EXHIBITS - NIL

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V. CHITAMBARESH, J.

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O.P.(C) No.2783 of 2012

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Dated this the 17^th day of September, 2012

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Judgment

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A supplementary preliminary decree passed in a suit for partition was challenged in appeal with a delay of 12 days. The court below has by the orders impugned refused to condone the delay and dismissed the appeal as not maintainable. The court below was perfectly justified in stating that only an appeal under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure would lie. The Civil Miscellaneous Appeal filed by the petitioner under Order 43 Rule 1 of the Code of Civil Procedure was obviously not maintainable.

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The petitioner has a grievance against the supplementary preliminary decree which could be canvassed in an appeal therefrom. A fresh appeal to be filed against the supplementary preliminary decree for partition would entail in further delay. I therefore set aside Exts.P7 and P8 orders impugned in this Original Petition. The Civil Miscellaneous Appeal is sent back to the lower appellate court to enable the appellants therein to file

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OP(C) 2783/12

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an application for conversion as an appeal suit.

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The court below shall allow any application for conversion

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filed in C.M.A.No.45 of 2010 on the file of the Court of the Subordinate Judge of Thalassery. The court below shall thereafter deal with the appeal suit and the application filed to condone the

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delay on merits after hearing the respondents therein also.

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No further directions are called for. The Original Petition

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is disposed of.

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V. CHITAMBARESH, JUDGE.

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srd

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OP(C) 2783/12 3

O.K.Kanakaraj v. C.K.Premavally

Case brief

What is this about?

What did the court decide?

O.K.Kanakaraj v. C.K.Premavally

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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