LUVILN ANTONEY MICHAL DAMIYANOSE Vs. LOVELYN BURNABY

JUDGEMENT

(1.) Challenge in this appeal is against the order passed by the Subordinate Judge, Cherthala on I.A.No.486 of 2011 in O.S.No.8 of 1984. Appellant is the additional 2nd plaintiff in a suit for partition. Originally the suit was filed by his father. Initially the suit was decreed, against which A.S.No.362 of 1993 was filed before this Court. After hearing the parties, this Court remanded the case for a fresh disposal. Meanwhile the shares of most of the defendants were purchased by the appellant's father. The suit was contested only against defendants 4 to 6. Later, appellant's father died. During his life time he had executed a Will in favour of the appellant. That was produced along with I.A.No.328 of 2010 before the trial court for impleading the appellant as additional plaintiff. The other legal heirs of appellant's father were impleaded as additional respondents 4 to 7. They did not appear before court in spite of effecting service of notice on them. Court below allowed the petition and impleaded the appellant as the additional 2nd plaintiff. Thereafter the suit was settled between the additional 2nd plaintiff and other contesting defendants and a compromise was filed. Accordingly a preliminary decree was passed in terms of the compromise on 28.02.2011.

(2.) 1St respondent herein is the sister of appellant. She had been shown as 6th respondent in I.A.No.328 of 2010 in the suit. She filed I.A.No.486 of 2011 before the court below to review the preliminary decree and judgment contending that she was not served with any notice in I.A.No.328 of 2010 and therefore the impleadment of the appellant was legally incorrect.

(3.) The parties adduced evidence on I.A.No.486 of 2011 by producing documents and adducing oral evidence. Documents produced, viz., Ext.A2 would show that the 1st respondent was abroad at the time when notice in I.A.No.328 of 2010 was attempted to be served on her. After considering the matters on merit, the trial court allowed the application and set aside the preliminary decree passed on the basis of the compromise. Further, I.A.No.328 of 2010 was reopened by the court below on the finding that the 1st respondent was not properly served and she should have been heard in the matter.