RAJAN V P Vs. SASEENDRAN

JUDGEMENT

(1.) THE petitioner, who is the third defendant in a suit for partition filed an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the preliminary decree which was passed ex parte. There was a delay in filing the application for setting aside the ex parte decree. An application was filed to condone the delay. The trial court dismissed both the applications. The third defendant filed CMA No.141 of 2009 before the First Additional District Court, Thrissur against the order passed by the trial court. The appeal was dismissed by a one line order which reads as follows: ï¿ 1/2"CMA is dismissed as infructuous".

(2.) THE learned counsel for the petitioner submitted that the dismissal of the appeal was on the basis of the submission made by the respondent before the appellate court that the appeal had become infructuous on the ground that a final decree was passed in the partition suit. That such a submission was made, is not disputed by the learned counsel for the respondent.

(3.) THE same principles would apply in the case of a preliminary decree passed ex parte. Pending an application to condone the delay in filing an application for setting aside the ex parte preliminary decree, if a final decree is passed, on the setting aside of the ex parte decree, the final decree would be of no effect and force. The application to set aside the ex parte preliminary decree cannot be dismissed as infructuous on the ground that a final decree was passed. Similarly, a Civil Miscellaneous Appeal filed against the dismissal of the application for setting aside the ex parte preliminary decree cannot be dismissed on the ground that the appeal became infructuous on the passing of the final decree in the meanwhile. The judgment passed by the court below is illegal and unsustainable, which is liable to be set aside in the exercise of the jurisdiction under Article 227 of the Constitution of India. Accordingly, the Original Petition is allowed. The judgment in CMA No.141 of 2009 is set aside. The Appellate Court shall dispose of the C.M.Appeal on the merits, as expeditiously as possible, and at any rate within a period of two months from the date of receipt of a copy of the judgment.