Dismissed

Varghese P.O. v. Antony

Kerala HC12 Sept 2013OP(C)/3234/2013

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an original petition filed under Article 227 of the Constitution challenging a final partition decree. The court found no grounds for interference as the petitioner failed to explain the ex parte settlement or notice receipt in the execution petition, directing him to seek appropriate remedies instead.

What did the court decide?

The original petition challenging the final decree for partition was dismissed without prejudice to the right of the petitioner to institute other appropriate proceedings.

Varghese P.O. Vs Antony — Partition | Kerala HC (2013)

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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 P.N.RAVINDRAN

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THURSDAY, THE 12TH DAY OF SEPTEMBER 2013/21ST BHADRA, 1935

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OP(C).No. 3234 of 2013 (O)

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AGAINST THE JUDGMENT IN OS 332/2004 of MUNSIFFS COURT, ERNAKULAM

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PETITIONER(S):

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VARGHESE P.O, AGED 54 YEARS, S/O.LATE OUSO, PUTHENPURAKKAL HOUSE, PANAMBUKADDU, MULAVUKADU (P.O), COCHIN-682 031.

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BY ADV. SRI.R.V.SUJIT KUMAR

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RESPONDENT(S):

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1. ANTONY, AGED 63 YEARS, S/O.OUSO, PUTHENPURAKKAL HOUSE, PANAMBUKADDU,

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MULAVUKADU (P.O), COCHIN-682 031.

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2. BABY MICHAEL, AGED 57 YEARS,

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W/O.MICHAEL, THARAMEL HOUSE, CHEMBUMUKKU,

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NEAR PIPE LINE, BHARAT MATA COLLEGE (P.O),

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ERNAKULAM. 682 030.

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3. MRS.ELSY JOSEY,

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NEDIYODI HOUSE, CHERIYAKADAVU, NEAR LATIN CHURCH,

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KANNAMALI-682 004.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 3234 of 2013 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1TRUE COPY OF SALE DEED NO.4021/1991 OF ERNAKULAM SRO.

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P2TRUE COPY OF FINAL DECREE DATED 07.04.2008 IN O.S.332/2004 OF MUNSIFFS COURT, ERNAKULAM.

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P3TRUE COPY OF EXECUTION PETITION FILED AS E.P.NO.298/2008 IN O.S.NO.332/2004 OF MUNSIFFS COURT, ERNAKULAM.

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RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

P.N.RAVINDRAN, J.

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O.P.(C).No.3234 of 2013

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Dated this the 12^th day of September, 2013

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JUDGMENT

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The petitioner, who was the first defendant in O.S.No.332 of 2004 on the file of the Court of the Principal Munsiff of Ernakulam, has filed this original petition under Article 227 of the Constitution of India challenging the final decree for partition passed on 7.4.2008 on I.A.No.8764 of 2006 in O.S.No.332 of 2004. A preliminary decree for partition was passed on 23.9.2005 directing division of the plaint schedule property in four equal shares and allotment of one such share to the first respondent/ the plaintiff in the suit. After the final decree was passed the plaintiff filed an execution petition way back in June 2009 to execute the final decree. It is long thereafter that the instant original petition is filed contending that the lawyer engaged by the District Legal Services Authority, Ernakulam to appear for the petitioner did not appear before the trial court or properly defend the case and therefore he was set ex parte. In this original petition the petitioner has not stated the reason why he was set

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-:2:-

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ex parte. He has also not stated whether he had received notice in the execution petition filed by the plaintiff to execute the final decree for partition. The remedy of the petitioner, if he is aggrieved by the final decree, is to challenge it in appeal. His remedy also lies in taking steps to have the preliminary decree set aside, if grounds exist.

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I therefore find no grounds to entertain this original petition. It is accordingly dismissed without prejudice to the right of the petitioner to institute other appropriate proceedings seeking redressal of his grievances.

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P.N.RAVINDRAN, Judge.

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ahg.

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P.N.RAVINDRAN, J.

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O.P.(C).No.3234 of 2013

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JUDGMENT

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12^th September, 2013

Varghese P.O. v. Antony

Case brief

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Varghese P.O. v. Antony

Case brief

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