KALLUKETTIYA PEEDIKAYIL KARUKKANPADINHARE Vs. KALLUKETTIYA PEEDIKAYIL KARUKKANPADINJARE PURAYIL

JUDGEMENT

(1.) THIS original petition is filed by the 12th respondent in the final decree for partition in O.S.No.73 of 1949 of the Sub Court, Kannur. After much contest, a final decree was passed on 18-12-2008. That was confirmed by the First Appellate Court in A.S.No.104 of 2009 on 10-11-2011. There was a second appeal to this court as R.S.A.No.923 of 2012 which, after hearing the Counsel who appeared for the caveator also was disposed of by this court as per Exhibit P4, judgment dated 25.09.2012. That was followed by the petitioner filing E.P.No.275 of 2012 for delivery of property allotted to her. Petitioner also filed E.A.No.221 of 2012 to dispense with notice under Rule 22(1) of Order XXI of the Code of Civil Procedure (for short 'the Code'). On that application the executing court passed (Exhibit P5) order as under:- "heard and not allowed". The said order is under challenge.

(2.) LEARNED counsel submits that the executing court has not stated any reason for not allowing request of the petitioner. It is pointed out that as per Sub Rule 2 of Rule 22 of Order XXI of the Code, the executing court is vested with power to dispense with notice under Rule 22(1) if issue of notice would cause unreasonable delay or would defeat the ends of justice. It is also pointed out that as of now, there are 132 respondents and it would take much time to serve notice on all those respondents. It may also happen that if any of them expires in the meantime, steps are to be taken against their legal representatives which would again delay the proceeding. Learned Counsel submits that the suit is of the year, 1949 and this court in Exhibit P4, judgment also pointed out the necessity to put an end to this litigation at the earliest.

(3.) AS aforesaid, there are 132 respondents in E.P.No.275 of 2012. The suit is of the year, 1949. It is pointed out by the learned counsel that some of the parties in the final decree have already taken delivery of their share. If notice under Rule 22(1) of Order XXI (if at all it is required otherwise) is insisted, it may take a few years for service of notice and by that time, necessity for impleadment of legal heirs/representatives may also arise (if it so happens) in which case service of notice on them will be further delayed. The above circumstances, according to me, are sufficient to dispense with notice under Rule 22 (1) of Order XX1 of the Code. It is unfortunate that learned Sub Judge has not adverted to these aspects while passing Exhibit P5, order. Hence that order is liable to be set aside and the request in E.A.NO.221 of 2012, allowed. The Original Petition is allowed as under: