Kerala High Court
Revision vs Thressia Antony on 23 May, 2012
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934
CRP.No. 414 of 2011 ( )
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CMA.39/2009 of I ADDL.DISTRICT COURT, ERNAKULAM
OS.432/1980 of I ADDL.SUB COURT,ERNAKULAM
REVISION PETITIONERS/ADDL.APPELLANTS 2-4/LRS OF PETITIONER/
ADDL.6TH PLAINTIFF:
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1. THRESSIA ANTONY, AGED 51,
W/O.T.P.ANTONY (ANTONY PAULOSE), THOTTAKATH HOUSE
CHERANALLOOR P.O., KOCHI-682034.
2. ROSY ANTONY, D/O.T.P.ANTONY (ANTONY PAULOSE),
THOTTAKATH HOUSE, CHERANALLOOR P.O., KOCHI-682034.
3. MARY ANTONY, D/O.T.P.ANTONY (ANTONY PAULOSE),
THOTTAKATH HOUSE, CHERANALLOOR P.O., KOCHI-682034.
BY ADV. SRI.P.T.ANTONY
RESPONDENTS/RESPONDENTS/PLAINTIFFS/ADDL.PLAINTIFFS/
DEFENDANTS/ADDL.DEFENDANTS:
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1. VIRONICA ALIAS VIRONI THOMAS,
D/O.ESTHAPPANOSE AND W/O.THOMAS,
THAREPARAMBIL HOUSE, MOOLAMKUZHY, ARIYAD
MUNDEMVELI P.O., KOCHI-7.
2. VINU STEPHEN, S/O.STEPHEN (LATE),
THOTTAKATH HOUSE, NOW RESIDING AT THANEPARAMBIL
4TH FLOOR, MARENIA TOWERS, MANORAMA JUNCTION
S.A.ROAD, PANAMPILLY NAGAR, ERNAKULAM
KOCHI-682036.
3. MARY STEPHEN, D/O.STEPHEN (LATE),
THOTTAKATH HOUSE, NOW RESIDING AT THANEPARAMBIL
4TH FLOOR, MARENIA TOWERS, MANORAMA JUNCTION
S.A.ROAD, PANAMPILLY NAGAR, ERNAKULAM
KOCHI-682036.
VK
CRP.No. 414 of 2011 ( )
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4. DULSY STEPHEN, W/O.LATE STEPHEN,
THOTTAKATH HOUSE, NOW RESIDING AT THANEPARAMBIL
4TH FLOOR, MARENIA TOWERS, MANORAMA JUNCTION
S.A.ROAD, PANAMPILLY NAGAR, ERNAKULAM
KOCHI-682036.
5. LILLY, D/O.ESTHAPANOSE, W/O.PAUL J.
CHANDY, RESIDING AT PADAPURACKAL PARAMBU
CHERANALLUR P.O., KOCHI-34.
6. ELIZEBETH PAPPU, W/O.LATE PAPPU,
PADAPURAKKAL HOUSE, NOW RESIDING AT CHERUVATHUR
HOUSE, CHOOLAKAL LANE, ST.BENEDICT ROAD
ERNAKULAM, KOCHI-18.
7. VINU JOSEPH, S/O.LATE PAPPU, -DO-.
8. VIBI JOSEPH, S/O.LATE PAPPU, -DO-.
9. JOY P.P., S/O.PEEYUS AND VICTORIA,
PANAKKAL HOUSE, NAYARAMBALAM, NARAKKAL
KOCHI-682509.
10. GRACY FRANCIS, D/O.PEEYUS AND VICTORIA,
PANAKKAL HOUSE, NAYARAMBALAM, NARAKKAL
KOCHI-682509.
11. MAJI BENNY, W/O.BENNY JOSEPH,
AZHIYOOR, P.O.MAHI-673309.
12. EARNEST STEPHEN, S/O.P.E.MATHEW,
PADAPURACKAL HOUSE, RTD.CO-EMPLOYEE,
NEAR NITHYA SAHAYA MATHA CHURCH, CHERANELLUR P.O.
KOCHI-34.
13. BARBERA STEPHEENA, D/O.MATHEW,
W/O.SIMON, THAYANKERY HOUSE, NEAR AMBALA KADAVU
CHERANELLUR P.O., KOCHI-34.
14. MARITA PHILOMINA, D/O.MATHEW,
W/O.SIMON, THAYAKERY HOUSE, NEAR MARY MATHA
CONVENT, VAZHAKKALA, KAKKANAD P.O., KOCHI-30.
15. JOSEPH RUBAN, S/O.MATHEW, AGED 53 YEARS,
PADAPURACKAL HOUSE, NEAR KACHERIPADY, CHERANALLOOR
P.O., KOCHI-34.
VK
CRP.No. 414 of 2011 ( )
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16. PAUL DENNIS, S/O.MATHEW, AGED 50 YEARS,
PADAPURACKAL HOUSE, NEAR KACHERIPADY
CHERANALLOOR P.O., KOCHI-34.
17. URSULA SHERLY, D/O.MATHEW, AGED 44,
CHERIKALAKATH HOUSE, MARATHUKUNNU, ENKAKKAD P.O.
VADAKKANCHERY.
18. JUSTINA SHEEBA, D/O.MATHEW AND
W/O.BASIL THOMAS, AGED 41 YEARS, THANNIKKAL HOUSE,
NEAR NAVANIRMAN SCHOOL ANNEXE, VAZHAKKALA
KAKKANAD P.O., KOCHI-30.
R2, R3 & 4 BY ADVS.SRI.T.M.SUNIL
SMT.S.CHITHRA
SRI.S.B.PREMACHANDRA PRABHU
SRI.M.P.RAMNATH
SRI.N.C.JOSEPH
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 23-05-2012, ALONG WITH CRP. 415/2011, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
VK
V. CHITAMBARESH, J.
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C.R.P.Nos.414 & 415 of 2011
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Dated this the 23rd day of May, 2012
ORDER
These Civil Revision Petitions are filed by the legal heirs of one Antony Paulose who died on 11.07.2009. The said Antony Paulose was the additional 6th plaintiff in O.S.No.432/1980 and the additional 9th defendant in O.S.No.411 of 1986 on the file of the Court of the Subordinate Judge of Ernakulam. A preliminary decree for partition was initially passed on 23.02.1983 and a revised preliminary decree passed on 29.03.2003 pursuant to the order of remand in Regular Second Appeal.
2. It is a conceded fact that Antony Paulose was not given a share under the preliminary decree. The preliminary decree reflects that Antony Paulose was represented by Advocate Manuraj in O.S.No.432/1980. The preliminary decree in O.S.No.411/1986 also do not reflect that he has been set ex parte. An application under Order IX Rule 13 Crl.R.P. Nos. 414 & 415/2011 Page numbers C.P.C would lie only if a decree is passed ex parte against a defendant.
3. An application to pass a final decree in terms of the preliminary decree was filed by the plaintiff in the year 2005. Antony Paulose filed I.A.No.7791/2007 in O.S.No.411/1986 and I.A.No.7792/2007 in O.S.No.432/1980 in the year 2007 only. The trial court dismissed both the applications which has been confirmed in C.M.A.Nos.38 and 39 of 2009 on the file of the Court of the District Judge of Ernakulam.
4. Order IX Rule 13 C.P.C reads as follows:-
" In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set aside;......."
It is thus essential that a decree should have been passed ex parte against a defendant for invoking Order IX Rule 13 C.P.C. Antony Poulose was not set ex parte either in O.S.No.411/1986 or in O.S.No.432/1982. Therefore the dismissal of the applications put in by him under Order IX Rule 13 C.P.C as confirmed by the Appellate Court cannot be Crl.R.P. Nos. 414 & 415/2011 Page numbers faulted with. The suit was instituted almost three decades ago and final decree proceedings are about to be terminated. It is too late in the day for the parties to contend that the Original Decree itself is bad for non-application of law.
No grounds exist warranting interference under Section 115 C.P.C. These Civil Revision Petitions are dismissed.
V. CHITAMBARESH, JUDGE sj