MADHAVIKUTTY AMMA Vs. THATHA

JUDGEMENT

(1.) In this appeal filed by the plaintiffs in a suit for partition, the judgment of the District Judge, Palakkad in A.S.No. 158/1995 by which he passed an order of remand is challenged.

(2.) After the passing of the preliminary decree for partition, a final decree application was filed. It was found that actual partition of the property was not possible. The court ordered sale of the property among the co-owners, for which it appointed a commissioner. The sale was adjourned at the request of one of the defendants. Later the property was sold on 09.06.1993 to the plaintiffs, who were the highest bidders. The commissioner filed a report before the trial court. Thereafter, he filed a supplementary report with regard to the share of profits also. The trial court considered both reports on 30.06.1994. It is seen from the certified copy of the order passed by the trial court in the final decree application that the parties "had no objection in passing a final decree in accordance with the commissioner's report". It passed a final decree dividing the sale consideration among the co-owners in accordance with the preliminary decree. The plaintiffs/purchasers took delivery of the property and sold it to one Vasudevan Nair. Some of the defendants filed A.S.No.158/1995 challenging the final decree. There was a delay of 319 days. The purchaser was not made a party to the appeal or the delay condonation petition. Later, when the plaintiffs informed the appellate court about the sale of the property, the appellants impleaded the purchaser in the appeal, but not in the delay condonation petition. Notice to the purchaser happened to be published in the newspaper. He did not enter appearance. The appeal was allowed and the matter was remanded after setting aside the final decree. On getting notice from the trial court the purchaser filed an application in A.S.No.158/1995 to set aside the order of remand and to rehear the appeal. That was dismissed. It was challenged in C.M.A.No.241/1998. The purchaser died pending the C.M.A. and his legal representatives were impleaded. This court allowed the C.M.A. and directed the District Judge to consider the delay condonation petition and the appeal afresh. Both were heard. The learned District Judge allowed the delay condonation petition and heard the appeal again. By the impugned judgment, the learned District Judge allowed the appeal again and remanded the matter. This order of remand is challenged in this appeal.

(3.) The first ground on which the judgment of the District Judge is challenged is that no appeal was maintainable against a consent decree. There is no dispute about it. The question is whether the final decree was a consent decree. The relevant statements in the order passed by the learned Munsiff is this: "The parties have no objection in passing a final decree in accordance with the commissioner's report. Hence the commission report dated 21.06.1993 and supplementary report filed on 10.01.1994 are accepted in toto and marked as Exts. and C1 & C2". A final decree was passed accordingly. The statement that the parties had no objection to a final decree being passed in accordance with the report of the commissioner certainly means that they consented to passing a final decree on the basis of the commission report. It is a consent decree. The appeal challenging the final decree was not at all maintainable.