OUSEPH AKKARA ANTHONY Vs. PHILOMINA

JUDGEMENT

(1.) Second appeal by defendants 9 and 12. The suit property belonged to Ouseph, who left behind him two sons, Ouseph (junior) and the 12th defendant. Defendants 1 to 11 are the legal representatives of Ouseph (junior).

(2.) For a decree obtained against the 12th defendant the plaintiff's mother purchased in court auction the 12th defendant's share in the property, and on 25-12-1120 the plaintiff had symbolical delivery of possession thereof by court. She instituted this suit on 20-12-1132 for partition of her moiety in the property thus obtained. The 9th defendant remained ex parte at the trial; and the 12th defendant contended the suit to be barred by limitation. The Munsiff overruled the contention and decreed the suit and that has been affirmed by the Subordinate Judge. Defendants 9 and 12 have come up in second appeal.

(3.) It must be said at the outset that in the share of the 12th defendant sold to the plaintiff's late mother, the 9th defendant is not shown to have any interest. The decree appealed against is only a preliminary decree in partition, declaring the moiety of the 12th defendant to have vested in the plaintiff and directing separation of the same. The 9th defendant cannot be aggrieved by the decree and is therefore incompetent to file this second appeal.