Kerala High Court
Malathy Amma vs Padmavathy Amma on 7 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
OP(C) NO. 92 OF 2020
AGAINST THE ORDER/JUDGMENT IN CMA 5/2018 OF SUB COURT, OTTAPPALAM
PETITIONER :-
MALATHY AMMA
AGED 81 YEARS
D/O. LATE KUNJILAKSHMI AMMA, THEKKEKALATHIL HOSUE,
MANISSERY POST, THRIKKANGODE AMSOM, OTTAPALAM TALUK,
PALAKKAD DISTRICT-679 521.
BY ADV R.SREEHARI
RESPONDENT :-
PADMAVATHY AMMA
AGED 71 YEARS
D/O. LATE KUNJILAKSHMI AMMA, THEKKEKALATHIL HOSUE,
MANISSERY POST, THRIKKANGODE AMSOM, OTTAPALAM TALUK,
PALAKKAD DISTRICT-679 521.
BY ADV SRI.SANTHEEP ANKARATH
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 92 OF 2020
2
JUDGMENT
Dated this the 07th day of October, 2022
Aggrieved by the judgment in C.M.A.No.05/2018
(Ext.P16) of the Court of the Subordinate Judge,
Ottapalam (the appellate court) and the common order in
I.A No.1345/2017 and 1350/2017 (Ext.P9) in
F.D.I.A.No.1205/2014 in O.S.378/2011 of the Munsiff
Court, Ottappalam (trial court), the first defendant in the
suit has filed the original petition under Article 227 of the
Constitution of India. The plaintiff is the respondent.
2. The facts in brief, relevant for the determination
of the Original Petition are : the respondent filed the suit
against the petitioner and the second defendant for
partition. The petitioner was set ex-parte and Ext.P4 final
decree was passed. The petitioner filed I.A.Nos.1350/2017
(Ext.P5) and 1349/2017 (Ext.P6) to set aside the ex-parte
final decree and to condone the delay of 446 days in filing
OP(C) NO. 92 OF 2020
Ext.P5 application. The applications were opposed by the
respondents by filing Exts.P7 and P8 counter statements.
The trial court, by Ext.P9 common order, dismissed
Exts.P5 and P6 applications. The petitioner preferred
C.M.A.No.05/2018 before the appellate court along with
an application to condone the delay of 13 days in filing
the appeal. The appellate court dismissed the said
application and the appeal by Exts.P13 order and P14
judgment. The petitioner challenged Exts.P13 and P14
before this Court by filing O.P(C) No.3134/2018. By
Ext.P15 judgment, this Court set aside Exts.P13 and P14
and directed the appellate court to reconsider the appeal
on merits. The appellate court, by the impugned Ext.P16
judgment, dismissed the appeal. Exts.P9 and P16 are
erroneous and wrong. Hence the Original Petition.
3. Heard Sri.R.Sreehari, the learned counsel
appearing for the petitioner and Sri.Santheep Ankarath,
the learned counsel appearing for the respondent.
OP(C) NO. 92 OF 2020
4. The point is whether there is any error or
illegality in Exts.P9 and P16 passed by the courts below.
5. On an analysis of the pleadings and materials on
record, the suit is one for partition between two sisters
who are past their seventies. The respondent is also a
widow. The petitioner was set ex-parte in the final decree.
The petitioner filed Ext.P5 application to set aside the ex-
parte final decree and Ext.P6 application to condone the
delay of 446 days in filing Ext.P5 application. The main
ground in the affidavit filed in support of the applications
is that the petitioner was not informed by a counsel about
the final decree applications and that she was sick and
laid up. She also alleged that her counsel had shifted to
Ernakulam. The courts below have found the allegations
to be incorrect because on 06.08.14, the petitioner had
entered appearance through counsel and sought time to
file her objections. The application was adjourned on 3-4
posting dates and was finally allowed on 13.01.2015. She
OP(C) NO. 92 OF 2020
also learnt that the property would be delivered on
04.04.17, which was effected and the execution
proceedings were terminated.
6. The courts below, after appreciating the
pleadings and materials on record and on finding that the
reasons stated by the petitioner was not satisfactory to
condone the inordinate delay of 446 days, concurrently
held that there was no merits in Exts.P5 and P6
applications.
7. I have reconsidered the matter and I do not find
any ground to differ with the concurrent findings of the
courts below warranting interference by this Court under
Article 227 of the Constitution of India. The Original
Petition is devoid of merits and is dismissed.
Sd/-
C.S.DIAS, JUDGE
SMA
OP(C) NO. 92 OF 2020
APPENDIX
PETITIONER EXHIBITS :-
EXHIBIT P1 PHOTO COPY OF PLAINT IN O.S.NO.378/2011
OF MUNSIFF COURT, OTTAPALAM.
EXHIBIT P2 PHOTO COPY OF THE WRITTEN STATEMENT OF
THE IST DEFENDANT IN O.S.NO.378/2011 OF
MUNSIFF COURT, OTTAPALAM.
EXHIBIT P3 PHOTO COPY OF THE WRITTEN STATEMENT FILED
BY THE 2ND DEFENDANT IN OS 378/2011 OF
MUNSIFF COURT, OTTAPALAM.
EXHIBIT P4 PHOTO COPY OF THE FINAL DECREE PASSED IN
OS NO.378/2011 OF MUNSIFF COURT,
OTTAPALAM DATED 31.3.2016.
EXHIBIT P5 PHOTO COPY OF THE AFFIDAVIT AND
APPLICATION IA 1350/2017 IN FDIA
1205/2014 IN OS 378/2011 OF MUNSIFF
COURT, OTTAPALAM.
EXHIBIT P6 PHOTO COPY OF THE AFFIDAVIT AND
APPLICATION IA 1349/2017 IN FDIA
1205/2014 IN OS 378/2011 OF MUNSIFF
COURT, OTTAPALAM.
EXHIBIT P7 PHOTO COPY OF OBJECTION FILED IN IA
1350/2017 IN FDIA 1205/2014 IN OS
378/2011 OF MUNSIFF COURT, OTTAPALAM.
EXHIBIT P8 PHOTO COPY OF OBJECTION FILED IN IA
1349/2017 IN FIDA 1205/2014 IN OS
378/2011 OF MUNSIFF COURT, OTTAPALAM.
EXHIBIT P9 PHOTO COPY OF COMMON ORDER PASSED IN IA
1345/2017 AND 1350/2017 IN FDIA 12.5.2014
IN OS 378/2011 OF MUNSIFF COURT,
OTTAPALAM DATED 17.11.2017.
OP(C) NO. 92 OF 2020
EXHIBIT P10 PHOTO COPY OF APPEAL MEMORANDUM IN CMA
5/2018 OF SUB COURT, OTTAPALAM.
EXHIBIT P11 PHOTO COPY OF AFFIDAVIT FILED IN SUPPORT
OF IA 419/2018 IN CMA 5/2018 OF SUB
COURT, OTTAPALAM.
EXHIBIT P12 PHOTO COPY OF THE OBJECTION FILED INIA
419/2018 IN CMA 5/2018 OF SUB COURT,
OTTAPALAM.
EXHIBIT P13 PHOTO COPY OF THE ORDER PASSED IN IA
419/2018 IN CMA 5/2018 OF SUB COURT,
OTTAPALAM DATED 10.10.2018.
EXHIBIT P14 PHOTO COPY OF JUDGMENT IN CMA 5/2018 OF
SUB COURT, OTTAPALAM DATED 10.10.2018.
EXHIBIT P15 PHOTO COPY OF JUDGMENT IN OP(C)
NO.3134/2018 OF THIS HON'BLE COURT DATED
21.12.2018.
EXHIBIT P16 PHOTO COPY OF JUDGMENT IN CMA NO.5/2018
OF SUB COURT, OTTAPALAM DATED 30.9.2019.
RESPONDENT'S EXHIBTS : NIL
//TRUE COPY//
PA TO JUDGE
