Dismissed

Aleyamma v. Thambi @ Kunjappan Thambi

Kerala HC25 Oct 2016FAO/236/2016

Case brief

AI extract

What is this about?

The High Court dismissed the first appeal against an order refusing to set aside the dismissal of a civil suit. It held that the bar under Order IX Rule 9 of the CPC does not apply as partition is a continuing right. The appellant was allowed to file a fresh suit for partition.

What did the court decide?

The First Appeal is dismissed subject to the observation that a fresh partition suit can be filed.

Aleyamma Vs Thambi @ Kunjappan Thambi — Partition | Kerala HC (2016)

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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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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938

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FAO.No. 236 of 2016 ()

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AGAINST THE ORDER IN I.A.No.1157/2015 & I.A.No.1158/2015 IN O.S.No.153/2011 DATED 29.7.2016 ON THE FILE OF THE SUB COURT, PERUMBAVOOR

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APPELLANT/PETITIONER/PLAINTIFF:

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ALEYAMMA,

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AGED 71, D/O. LATE MAMMAN, KARAKUNNATH HOUSE, VELOOR, PUTHENCRUZ P.O., NOW RESIDING AT 109, ARUN DRIVE, ARUNDEL, O.L.D. 4214, AUSTRALIA.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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THAMBI @ KUNJAPPAN THAMBI,

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NO.7, PARK DALE COURT, ROBINA, GOLD COAST, QLD, AUSTRALIA. PIN - 33-868/1^st 207.

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SARAMMA THOMAS

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AGED 62, ARAKKAL HOUSE, KODUKULANJI KARA, CHENGANNOOR P.O., ALAPPUZHA.

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ANNAMMA

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D/O. LATE MAMMAN, KARAKUNNATH HOUSE, VELOOR, PUTHENCRUZ P.O., ERNAKULAM DISTRICT-682308.

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 25-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & ANIL K.NARENDRAN, JJ.

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F.A.O.No.236 of 2016

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Dated this the 25^th day of October, 2016

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JUDGMENT

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Chitambaresh, J.

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An order refusing to set aside the dismissal of the suit and restore the same to file is impugned. The court below has correctly found that the delay of 1076 days in seeking to restore the suit dismissed for default has not been explained properly. We do feel that there is no necessity to resurrect the suit which was dismissed for default as early as on 26.11.2012.

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We wish to add that the bar under Order IX Rule 9 of the Code of Civil Procedure does not apply in the instant case since the suit is one for partition. Reference in this connection to Babu Vs. Xavier (1978 (1) KLT 174) (DB) is apposite. It has been held therein that the right to enforce partition is a continuing cause of action and the bar

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F.A.O.No.236 of 2016

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under Order IX Rule 9 of the C.P.C. would not operate. The petitioner/plaintiff is therefore free to file a fresh suit for partition if she so desires.

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The First Appeal is dismissed subject to the above observation.

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Sd/- V.CHITAMBARESH, JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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skj

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True copy

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P.A to Judge

Aleyamma v. Thambi @ Kunjappan Thambi

Case brief

What is this about?

What did the court decide?

Aleyamma v. Thambi @ Kunjappan Thambi

Case brief

What is this about?

What did the court decide?

What the court decided

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