H KAMALA Vs. H MANAMOHINI

JUDGEMENT

(1.) Defendants 11, 12, 14, 15, 16, 18, 25 and 26 in a suit for partition are the appellants in the second appeal. The suit was decreed by the Trial Court and in appeal filed by the present appellants, the judgment and decree was modified in favour of the appellants. In this appeal, the following substantial questions of law were framed in the memorandum of second appeal on which notice was issued.

(2.) After hearing the counsel on both sides at length, it was felt that the substantial question of law to be framed is as follows:

(3.) The contention of the learned counsel for the appellants is that the main question in the appeal was whether certain property assigned by defendants 11 to 18 in favour of defendants 25 and 26 for partition and that aspect having been found against them without hearing them, there is violation of O.41 R.17 of the CPC. Since I am directing the appellate court to rehear the appeal, it is unnecessary to advert to the case on merits. The learned counsel for the respondents pointed out that if the appeal was a dismissal for default the proper remedy of the appellants was to apply for rehearing of the case and not by filing a second appeal before this Court. Inasmuch as the lower appellate court has not dismissed the case for default but entered findings on merits, that contention is also not acceptable. The learned counsel further pointed out that the only attempt of the appellants is somehow to delay the disposal of the case and the very fact that the counsel did not argue the case when the matter was called for hearing itself is indicative of that fact. He also pointed out that defendants 11 to 18 are only coowners and when they assigned portions of coownership property, the other coowners are not bound by the same and the only remedy available to them is for a claim in equity for allotment of the property at the final decree stage and the same has been already granted by the appellate court. As already observed earlier, it is for the appellate court to go into the merits of the rival contentions and it is not possible for this Court to ignore the mandatory provisions contained in the Code of Civil Procedure or the law laid down by the Supreme Court in Abdur Rahmans case (1996 (6) SCC 62).