KOCHUKUNJU STEPHEN Vs. ASHIA UMMAL

JUDGEMENT

(1.) This appeal is filed by the additional 26th defendant in O.S.No. 237 of 1963 on the file of the Munsiff's Court, Nedumangad. The suit was filed for partition of 13 items. The Trial Court passed a preliminary decree on 23.5.1967 in respect of items excluding items 1,2,6 and 20 in item No. 4. The plaintiff was granted a decree for partition of 119/576 shares. The appeal and second appeal against the preliminary decree ended in dismissal. Subsequently, the plaintiff filed an application I.A.No. 253 of 1977 for final decree. Pending the final decree application, the 13th defendant died on 1.2.1980. His widow and children filed I.A. 1345 of 1981 for impleading them as additional defendants. That was allowed. Defendants 22, 23, 25, 26 and 29 filed C.R.P. No. 2108 of 1983. This Court disposed of the C.R.P. in the following words:

(2.) The Appellate Court allowed the appeal and directed the Trial Court to proceed with items 4 and 5 of the plaint schedule property. The Appellate Court also set aside the final decree passed by the Trial Court and directed the Munsiff to reopen the preliminary decree in the light of the specific observation passed by this Court in C.R.P.No. 2108 of 1983 and afford opportunity to the petitioners in that C.R.P. to raise their independent claim and pass a supplemental preliminary decree in accordance with law as far as the claim over items Nos. 12 and 13 of plaint schedule properties alone.

(3.) The 13th defendant was ex parte. The application for setting aside the ex parte order was also dismissed. Now the contention of the appellant in this appeal is that the 13th defendant had obtained right in the property by Ext.B3 document dated 22.1.1118 ME and by Ext.B1 the 13th defendant transferred the right to his wife and children who were impleaded in the final decree proceedings as defendants 22 to 29. Their contention is that on the date of filing of the suit in 1963 the 13th defendant had no subsisting interest and any decree passed without the real owners on the party array has no legal effect and the 18th defendant was not bound to contest as he had ceased to have any right in the property. It is therefore contended that there was no necessity for the Appellate Court to direct the Trial Court to reopen the preliminary decree after affording defendants 22 to 29 to file written statement. It is also contended that the observations made in the CRP were treated as direction by the Appellate ' Court which was necessary.