JANARDHANAN Vs. CHANDRAMATHY

JUDGEMENT

(1.) We have heard the learned counsel for the appellants and the learned counsel who took notice on behalf of the respondents at length even at the time when the appeal came up for admission and are disposing of the appeal itself after admitting the same by this judgment. Apart from the points raised challenging the correctness of the decision on merits, a question of law of some general importance regarding the maintainability of an appeal filed against the final order passed in a final decree application for partition without producing a certified copy of the final decree has also been raised in the appeal. In fact, the main reason which persuaded us to admit the appeal and hear it at length was that the question of law raised deserved consideration by us.

(2.) The appeal which was disposed of by the learned single Judge as per the impugned judgment was one filed against the final order passed in a final decree application, I.A. No. 217 of 1979 in O.S. No. 177 of 1975 on the file of the Sub Court, Kozhikode. As per the impugned order, the Sub Court has passed a final decree as indicated in Para.3 to 5 (both inclusive) of the order. The court has also directed production of non judicial stamp papers of the required value fixing the date for production as 2.4.1986. The appellants along with the first defendant in the suit, who died pending appeal, preferred the appeal producing only the certified copy of the order in the I.A. Certified copy of the final decree was not produced either at the time of filing the appeal or thereafter till the appeal was finally disposed of by the learned Single Judge. In the cause title itself the appellants have indicated that the appeal is being filed against the order dated 10.3.1986 in I.A. No. 217 of 1979. The appeal was accepted by the registry without noting any defect and was admitted by a Division Bench of this Court on 7.8.1986 ordering notice to the respondents. At the time of admission, the Division Bench has passed an order of stay of all further proceedings also on 7.8.1986. The appeal ultimately came up for hearing in April, 1995 before the learned Single Judge. As per the impugned judgment, the learned Judge has found that the appeal filed without producing a certified copy of the final decree is incompetent and not maintainable. After entering such a finding, the learned Judge proceeded to consider the merits of the case observing thus:

(3.) After hearing the counsel on both sides, we agree with the findings of the learned Judge that no interference is called for on the findings recorded by the learned Sub Judge on the disputed question of fact decided by him on the basis of the evidence on record. The only question which deserves to be considered is whether the view taken by the learned Single Judge regarding the maintainability of the appeal is proper and sustainable.