Susheela and Others vs P. Ramani, P. Vijayalaxmi @ Susheela, P. Devadas and V. Geetha

Thomas P. Joseph, J.—Petitioners are legal representatives of deceased defendant No. 3 in O.S. No. 498 of 1989 of the court of learned Principal Munsiff-II, Kozhikode, a suit for partition. According to the petitioners, defendant No. 3 died on 14.03.2003, the Advocate Commissioner pursuant to the preliminary decree (passed prior to the death of defendant No. 3) submitted second report on 10.10.2003 and following that, there was a final decree passed on 05.10.2004. Respondents filed E.P. No. 232 of 2009 pursuant to the final decree and it is not disputed that property was delivered on 16.01.2010 as reported by the Amin of the court concerned. While so, petitioners filed application, I am told, on the trial side to set aside the final decree alleging that it is a nullity since it is passed against a dead man without his legal representatives on record. In E.P. No. 232 of 2009 petitioners filed E.A. No. 56 of 2010 to stay recording of delivery. That application is dismissed by the executing court as per Ext.P1, order dated February 16, 2010. Learned Counsel contends that it was illegal on the part of the executing court to have delivered the property on the strength of a final decree passed with a dead man on record and without impleading his legal representatives.

If petitioners have filed application to set aside the final decree, question whether the final decree passed without the legal representatives of deceased defendant No. 3 on record is a nullity or not is a matter to be decided by the court concerned and it is not necessary for this Court to go into that question. Now the question is only whether interference with Ext.P1, order refusing to stay recording of delivery is required. Admittedly pursuant to the final decree and in execution of that decree delivery of the property was effected on 16.01.2010 and what remained is only recording of delivery. There is no reason why that should be deferred. I am unable to find how recording of delivery of property would affect right if any of petitioners as to their contentions. In the circumstances, no interference is called for with Ext.P1, order.

Resultantly this petition fails. It is dismissed. If the application to set aside final decree is pending on the trial side, petitioners can request that court to expedite proceedings and if any such request is made, certainly that court shall consider that request and pass appropriate orders.