Kerala High Court
K.M. Mathew vs Unknown on 10 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA,
1942
RSA.No.444 OF 2018
AS 84/2016 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA
OS 322/2001 OF MUNSIFF COURT, MAVELIKKARA
APPELLANT/APPELLANT/DEFENDANT NO.5:
K.M. MATHEW, S/O MATHAI, AGED 71 YEARS,
KALAKATU VEEDU, VAZHUVADI MURI, TAZHAKKARA
VILLAGE.
BY ADVS.
SMT.GISA SUSAN THOMAS
SMT.N.LEELA MANI
RESPONDENTS/RESPONDENTS 1-3, 5-12, LRs OF R4/PLAINTIFF,
LRs OF D1-D3 & LRs OF D4 & D6:
1 LEELAMMA BABU
AGED 63 YEARS,D/O MATHAI,KOYIKKAL
PADICKAL,PUTHIYAKAVU,MAVELIKKARA-690101.
2 K.M.THOMAS
AGED 82 YEARS,S/O MATHAI,THOMAS
VILLA,THAZHAKKARA POST,MAVELIKKARA-690102.
3 KUNJUMMA JOHN
AGED 79 YEARS,D/O MATHAI,THOMMAN PARAMBIL
HOUSE,THAZHAKKARA POST,MAVELIKKARA-690102.
4 CHINNAMMA KURIAKOSE
AGED 4 YEARS,D/O MATHAI,MADATHIL
VADAKKATHIL,VAZHUVADI,THAZHAKKARA-690102.
RSA.No.444 OF 2018
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5 CHACKO THOMAS
AGED 67 YEARS,S/O MARIYAMMA THOMAS EZHARA
PARAYIL VEEDU,VEEEYAPURAM,HARIPAD-690514.
6 ELIAMMA JOHN
AGED 62 YEARS,D/O MARIAMMA THOMAWS,MADATHILETH
HOUSE,ANTHYAVAKKAVU
POST,MADAMMANITTA,PATHANAMTHITTA-689649.
7 SARAMMA DANIEL
AGED 59 YEARS,D/O MARIAMMA THOMAS,PARAPARAMBIL
HOUSE,ANAPPRAMPAL SOUTH
POST,THALAVADI,ALAPPUZHA-689572.
8 YOHANNAN THOMAS
AGED 54 YEARS,S/O MARIYAMMA
THOMAS,WZHZRAPARAYIL HOUSE,VEEYAPURAM
POST,HARIPAD-690514.
9 SOSAMMA THOMAS
AGED 50 YEARS,D/9O MARIYAMMA
THOMAS,NELLIMUTTIL VEEDU,KOMBADI
POST,MANJADI,THIRUVALLA-689105.
10 REV.FR.VARGHESE THOMAS
AGED 49 YEARS,ST.THOMAS SCHOOL,DAYANADU
NAGAR,HOSDUR,BANASWADA,RAJASTHAN-327001.
11 MARIAMMA POULOSE
AGED 44 YEARS,D/O MARIAMMA THOMAS,VATTAKKATTU
PARAMBIL,THALAVADI SOUTH
POST,THALAVADI,ALAPPUZHA-689572.
12 P.T.ANNAMMA
AGED 71 YEARS,W/O K.M.GHEEVARGHESE,LOVELY
GARDEN,PATTANI IDUKKAYIL,SANATHANAM
WARD,ALAPPUZHA-688007.
13 LOVELY THOMAS MATHEW
AGED 50 YEARS,D/O K.M.GHEEVARGHESE,LOVELY
GARDEN,PATTANI IDUKKAYIL,SANATHANAM
WARD,ALAPPUZHA-688003.
RSA.No.444 OF 2018
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14 RANI JOHNSON
AGED 48 YEARSK,D/O.K.M.GHEEVARGHESE,LOVELY
GARDEN,PATTANI IDUKKAYIL,SANATHANAM
WARD,ALAPPUZHA-688003.
ADDL. SANTHI ROY
R15 AGED 44 YEARS, D/O. K.M. GHEEVARGHESE, LOVELY
GARDEN, PATTANI IDUKKAYIL, SANATHANAM WARD,
ALAPPUZHA.
(ADDED AS THE 15TH RESPONDENT AS PER ORDER
DTD. 27/03/2019 IN IA 2/2019)
R1 BY ADV. SMT. SREEPRIYA
R1 BY ADV. SRI.P.B.MUHAMMED AJEESH
R1 BY ADV. SRI.V.VISAL AJAYAN
R2 BY ADV. SRI.GEORGE
VARGHESE(PERUMPALLIKUTTIYIL)
R2 BY ADV. SRI.A.R.DILEEP
R12-15 BY ADV. SRI.G.D.PANICKER
R12-15 BY ADV. SMT.JEENA JOSEPH
R12-15 BY ADV. SMT.V.J.SUMI LIZA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 10.03.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA.No.444 OF 2018
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JUDGMENT
The appellant herein was the petitioner in IA
No. 459 of 2016 in AS No. 84 of 2016 on the
file of the Additional District Court-I,
Mavelikkara. IA No. 459 of 2016 was filed under
Section 5 of the Limitation Act to condone the
delay of 278 days in filing the appeal
challenging the final decree for partition in
IA No. 899 of 2012 in OS No. 322 of 2001 of the
Munsiff's Court, Mavelikkara.
2. The preliminary decree for partition was passed
as early as on 31.03.2005. Consequent to the
preliminary decree for partition, two
applications were filed before the trial court
as IA Nos. 899 of 2012 and 980 of 2014 seeking
of 2012 was filed by the plaintiff and IA No.
980 of 2014 was filed by the defendants. The
trial court considered both applications
RSA.No.444 OF 2018
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together and passed a final decree on
31.03.2015. Thereafter, the present appellant
filed AS No. 84 of 2016 along with an
application under Section 5 of the Limitation
Act to condone the delay of 278 days in filing
the appeal against the final decree passed in
IA No.899 of of 2012. However, no appeal was
filed challenging the final judgment and decree
passed in IA No. 980 of 2014. Thus, the final
decree passed in IA No. 980 of 2014 remains
unchallenged.
3. The learned Additional District Judge, after
hearing both parties, dismissed the application
to condone the delay. Consequently, the appeal
was also dismissed. Challenging the judgment
and decree, this RSA has been filed.
4. The learned counsel for respondents 1 & 2 as
well as additional respondents 12 to 15 submits
that the final decree passed by the trial court
was put in execution and the property was
delivered over to the parties in execution of
RSA.No.444 OF 2018
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the final decree on 10.01.2018. It is further
submitted that the share of the appellant has
already been delivered over in execution of the
decree.
5. In the light of the above facts and
circumstances, this appeal has become
practically infructuous. Added to this, an
appeal challenging the final decree passed in
IA No. 899 of 2012 without challenging the
final decree passed in IA No. 980 of 2014 is
clearly unsustainable. Thus, the final decree
passed in IA No. 980 of 2014 has become final.
In the result, this RSA is dismissed at the
admission stage itself. There would be no order
as to costs. Pending applications, if any,
stand disposed of.
Sd/-
N.ANIL KUMAR
JUDGE
Bka/10.03.2021
