Dismissed

Bamba Maniyani v. Paty

Kerala HC1 Feb 2016MJC/20/2016

Case brief

AI extract

What is this about?

Petitioners sought restoration of a dismissed appeal in a partition suit after a 1962-day delay, citing a settlement and a deceased party. The High Court denied restoration, holding no sufficient cause existed, and suggested mediation for the pending final decree instead.

What did the court decide?

The C.M. Application No. 19 of 2016 and M.J.C. No. 20 of 2016 are dismissed without prejudice to proceedings in the final decree application.

Bamba Maniyani Vs Paty — 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 THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 1ST DAY OF FEBRUARY 2016/12TH MAGHA, 1937 MJC.No. 20 of 2016 () IN AS.403/1996 --------------------------------------

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AGAINST THE ORDER/JUDGMENT IN AS 403/2996 of HIGH COURT OF KERALA

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PETITIONER(S):

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1. BAMBA MANIYANI, S/O.APPU MANIYANI, AGED 88 YEARS, RESIDING AT BELA IN BELA VILLAGE, KASARAGOD TALUK, P.O.BELA-671 321.

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2. PAKKEERA MANIYANI, S/O.DO. DO.

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BY ADV. SRI.D.KRISHNA PRASAD

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RESPONDENT(S):

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1. PATY, D/O.APPU MANIYANI, AGED 80 YEARS, RESIDING AT BELA IN BELA VILLAGE, POST BELA - 671 321, KASARAGOD TALUK.

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2. MANAKKA, W/O.NARAYANA MANIYANI, AGED 70 YEARS, RESIDING AT KAKKABETTU, NETTANIGE VILLAGE, KASARAGOD TALUK, P.O. KAKKABETTU-671 543, KASARAGOD TALUK.

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3. CHERUDEYI ALIAS SREEDEVI, W/O.NARAYANA MANIYANI, AGED 68 YEARS, RESIDING AT KAIPANGLA, NETTANIGA VILLAGE, P.O. KINNINGAR-671 543, KASARAGOD TALUK.

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4. NARAYANA, S/O.APPU MANIYANI, AGED 66 YEARS, RESIDING AT BELA IN BELA VILLAGE, POST BELA - 671 321, KASARAGOD TALUK.

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5. KAVERI, W/O.KORGA MANIYANI, AGED 79 YEARS, RESIDING AT BELA IN BELA VILLAGE, POST BELA - 671 321, KASARAGOD TALUK.

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MJC.No. 20 of 2016

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-2-

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6. APPU MANIYANI, S/O.KORGA MANIYANI, AGED 58 YEARS, RESIDING AT BELA IN BELA VILLAGE, POST BELA - 671 321, KASARAGOD TALUK.

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7. SHIVARAMA MANIYANI, S/O.KORGA MANIYANI, AGED 54 YEARS, RESIDING AT BELA IN BELA VILLAGE, POST BELA - 671 321, KASARAGOD TALUK.

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8. BALAKRISHNA MANIYANI, AGED 49 YEARS, RESIDING AT BELA IN BELA VILLAGE, POST BELA - 671 321 KASARAGOD TALUK.

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9. RADHA, D/O.KORGA MANIYANI, AGED 46 YEARS, RESIDING AT BELA IN BELA VILLAGE, POST BELA - 671 321, KASARAGOD TALUK.

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10. CHOYICHI, W/O.APPUKUNHI MANIYANI, AGED 75 YEARS, RESIDING AT BELA IN BELA VILLAGE, POST BELA - 671 321, KASARAGOD TALUK.

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BY ADV. SRI.K.G.GOURI SANKAR RAI

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THIS MISCELLANEOUS JURISDICTION CASE HAVING BEEN FINALLY HEARD ON 01-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOTTATHIL B.RADHAKRISHNAN &

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ANU SIVARAMAN, JJ.

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----------------------------------------------C.M.Appl.19 of 2016 and M.J.C.20 of 2016 in A.S.403 of 2016 ----------------------------------------------Dated this the 1^st February, 2016

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O R D E R

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Thottathil B.Radhakrishnan, J.

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This M.J.C is filed seeking restoration of the appeal instituted against a preliminary decree in a suit for partition. The appeal was dismissed for non-prosecution. It is submitted that in the meanwhile, one of the parties is also no more. The enormous delay of 1962 days in instituting the M.J.C is attributed to a settlement which was arrived at between the parties in the presence of a deity and certain priests. If the matter has been settled, there is no question of reopening the preliminary decree. Notwithstanding that, being a suit for partition, it will always be open to the parties to enter into a settlement through mediation during the course of the final decree proceedings. We are told that the final decree proceedings are still pending. If that be so,

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even independent of any attempt to prove the aforesaid settlement out of court, there can be a fresh effort by the parties

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MJC.20/16

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to take the final decree proceedings for settlement through the court annexed mediation process under Section 89 of the Code of Civil Procedure and such media measures are eminently effective to liquidate the long pending litigation of the nature in hand.

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We are persuaded to hold that no cause has been shown, much less sufficient cause, to entertain the application seeking condonation of delay of 1962 days and for restoring the appeal to file. C.M.Application No.19 of 2016 and M.J.C.No.20 of 2016 are dismissed without prejudice to whatever proceedings could be carried in the court where the final decree application is pending.

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THOTTATHIL B.RADHAKRISHNAN JUDGE

ANU SIVARAMAN

JUDGE

vgs

MJC.20/16

C.M.Appl.19 of 2016 and

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M.J.C.20 of 2016 in A.S.403 of 2016

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O R D E R

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1^st February, 2016

Bamba Maniyani v. Paty

Case brief

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Bamba Maniyani v. Paty

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