ALEXANDER Vs. MEENAKSHI

JUDGEMENT

(1.) This revision is directed against the order dated 26.7.2001 of the Munsiff, Chavakkad in I.A. 2002/2000 in O.S. 300/1997.

(2.) The facts necessary for the disposal of this revision may be stated as follows: The revision petitioner is the 4th additional defendant in O.S. 300/1997. The suit is for partition and separate possession of the plaintiffs share in the suit property. The petitioner was impleaded in the suit as the supplemental 4th defendant. Though the petitioner was impleaded as the additional 4th defendant in the suit, no summons was issued to him and he was also not declared ex parte. The Court below passed a preliminary decree and an appeal preferred against the preliminary decree was also dismissed. When the plaintiff moved an application for passing a preliminary decree, the petitioner resisted the application contending that the preliminary decree is not binding on him since it was obtained behind his back. It was also contended by the petitioner that the property purchased by him and his wife is not liable for partition and the preliminary decree allowing the partition of the said property is clearly illegal. He further contended that he had constructed a two storeyed building in the property and his clinic is housed in the ground floor of the building. On these contentions, the petitioner wanted to reopen the preliminary decree. Though the court below accepted some of his contentions regarding item No. 2 scheduled to his counter statement, the court below did not accept his contention that item No. 1 scheduled to the counter statement is not at all partible. His prayer for reopening the preliminary decree was also rejected. The order is seriously challenged in this revision.

(3.) The learned counsel for the petitioner strongly contended that since no summons was issued to the plaintiff and the preliminary decree was passed beyond his back, the lower court ought to have found that the preliminary decree is void so far as the petitioner is concerned. According to the learned counsel, since no ex parte decree was passed in this case, the petitioner cannot file an application for setting aside the preliminary decree and therefore, the lower court ought to have modified the preliminary decree. We placed much reliance on the decision of this Court in Sosamma Yohannan and Others v. Elias & Anr. ( 2001 (1) KLJ 235 ). On the other hand, the learned counsel for the respondents supported the order of the court below and urged that there is no ground for interference.