Appeal against dismissal of application to set aside ex parte decree in a partition suit. Court held appeal allowed, set aside impugned order and decree, and granted final opportunity to defendants to contest on merits.
Impugned order and ex parte decree set aside; defendants granted final opportunity to contest proceedings on merits.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 24TH DAY OF JULY 2015/2ND SRAVANA, 1937
FAO.No. 124 of 2013 () -----------------------
(AGAINST THE ORDER/JUDGMENT IN I.A.NO.1162 OF 2012 IN OS 182/2009 of SUB COURT, TIRUR DATED 30-01-2013)
APPELLANT(S)/DEFENDANTS 19, 20,22, 23 & 24:: --------------------------------------------
S/O.LATE PULIYATH KUMARAN, PULIYATH, SOUTH ANNARA TIRUR, MALAPPURAM - 676 101.
BY ADVS.SRI.B.RAGUNATHAN
SRI.G.GOPALAKRISHNA PILLAI SRI.R.SRINATH SRI.M.M.LALBIND SRI.VIPIN VARGHESE
RESPONDENT(S)/PLAINTIFF AND DEFENDANTS NO.2 TO 18 & 21:: --------------------------------------------------------
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20-07-2015, THE COURT ON 24/7/2015 DELIVERED THE FOLLOWING:
THOTTATHIL B. RADHAKRISHNAN & SUNIL THOMAS, JJ.
F.A.O. No. 124 of 2013
Dated this the 24th day of July, 2015
JUDGMENT
Sunil Thomas, J.
This appeal is directed against the dismissal of I.A.No.1162 of 2012 in O.S.No.182 of 2009 of Sub Court, Tirur in a suit for partition.
F.A.O.No.124/2013 2
application holding that the plea on medical ground was not satisfactorily proved.
F.A.O.No.124/2013 3
an adjournment of the case on that ground.
F.A.O.No.124/2013
4
In the result, the appeal is allowed. The impugned order is set aside and the I.A. No.1162/2012 in O.S. No.182/2009 of the Sub Court, Tirur, stands allowed. Consequently, the ex parte decree stands set aside. Parties will appear before the court below on 2/9/2015. Thereafter, the court below shall complete the pre- trial steps, if any remaining, and proceed to list the case for trial in accordance with law. It is made clear that this will be
F.A.O.No.124/2013
5
a final opportunity to the defendants to contest the proceedings
on merits.
Sd/-
THOTTATHIL B.RADHAKRISHNAN Judge
Sd/-
SUNIL THOMAS Judge
dpk
/true copy/ P.S to Judge.
F.A.O.No.124/2013 6
2 issues framed by the court
Whether the impugned dismissal of the application to set aside an ex parte decree should be set aside to grant appellants another opportunity to contest proceedings on merits.
Whether the appellants' plea of having entrusted case conduct to one defendant who was ill needs to be accepted in the absence of other evidence.
P. Sunilkumar
P. Krishnakumar
Sunitha
Anitha
Karthiyani
Nechikattu Devaki
Thottathil B. Radhakrishnan
Sunil Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
