FATHIMABI Vs. AFROZ BANU

JUDGEMENT

(1.) The defendants in O.S.No.326 of 1998 on the file of the Munsiff Court, Kasaragod are the appellants in the second appeal.

(2.) The suit was one for rendition of account. The defendants are the wife and children of one Abdul Majeed. Abdul Majeed had 50 cents of property. The case of the plaintiff is that he has entered into a partnership with Abdul Majeed for carrying on the business of operating a cinema theatre; that the firm thus constituted has constructed a cinema theatre in the property held by Abdul Majeed; that the capital of Abdul Majeed was the property; that the property of the Abdul Majeed has thus become an asset of the firm and that the firm stood dissolved on 21.1.1991 when Abdul Majeed died. The suit was filed on 11.8.1998 for rendition of accounts of the firm. The defendants did not contest the suit. Consequently, a preliminary decree was passed ex-parte in the suit on 21.11998. On 23.7.1999, the plaintiff filed an application for passing of the final decree and the final decree was passed on 30.7.2001. On 17.3.2003, the plaintiff died. On 8.5.2003, defendants 1 and 3 filed a suit as O.S.No.172 of 2003 seeking a decree of prohibitory injunction restraining the legal representatives of the plaintiff from inducting strangers in the property held by Abdul Majeed where the cinema theatre was constructed. In the said suit, the legal representatives of the plaintiff produced the preliminary decree passed in the suit. According to the defendants, it is only then they came to know of the preliminary decree as also final decree passed in the suit. Thereupon, they filed I.A. No.1162 of 2003 to set aside the ex parte preliminary decree passed in the suit and I.A.No.1161 of 2003 to condone the delay in filing I.A.No.1162 of 2003. I.A.No.1161 of 2003 was dismissed and consequently, I.A.No.1162 of 2003 was also dismissed. The order passed by the trial court in I.A.No.1162 of 2003 was challenged by the defendants in C.M.A. No.33 of 2005 before the appellate court. The said appeal was allowed and the ex parte preliminary decree passed in the suit was set aside on terms. The decision in C.M.A. No.33 of 2005 was, however, challenged by the legal representatives of the plaintiff before this court in C.R.P.No.141 of 2007. This court examined the matter in detail and found that the defendants received notice in the suit, in the final decree application as also in the execution petition filed by the plaintiff thereafter and that therefore, there is no bonafides in the application preferred to set aside the ex-parte preliminary decree passed in the suit. C.R.P.No.141 of 2007 was consequently allowed and the order dismissing the application to set aside the ex parte preliminary decree in the suit was restored. The decision of this Court in C.R.P.No.141 of 2007 was though challenged by the defendants before the Apex Court, the Special Leave Petition preferred by them in this connection was dismissed. Thereupon, the defendants preferred a regular first appeal against the preliminary decree along with I.A.No.500 of 2011 seeking orders to condone the delay of 4716 days in filing the said appeal. The appellate court dismissed I.A.No.500 of 2011 and consequently dismissed the appeal also. This second appeal is instituted by the defendants challenging the preliminary decree in the suit as also the decision in the appeal preferred by them challenging the preliminary decree.

(3.) Heard the learned counsel for the appellants/defendants as also the learned Senior Counsel for the respondents/legal representatives of the plaintiff.