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1961 Supreme(Ker) 445
IN THE HIGH COURT OF KERALA
M.S. MENON, T.K. JOSEPH, JJ.
Kunjan Vasudevan - Appellant
Vs.
Saraswathi - Respondent
S.A. No.397 of 1957
Decided On : 03-02-1961
For the Appellants : K.C. John, K.R. Sankaranarayanan Nair & V. Gopalakrishna Rao.
For the Respondents: P. Subramonian Potti & S. Narayanan Potti.
An exparte defendant in a partition suit must seek relief through the appropriate legal channels provided by the Code to challenge the final decree.
Headnote:
Exparte - Partition Suit - Validity of Decree in Execution
Fact of the Case:
The defendants questioned the validity of the final decree in execution, claiming it was void because the 63rd defendant chose to remain exparte in the suit for partition.
Finding of the Court:
The lower appellate court initially held in favor of the defendants, but the second appeal court reversed the decision, stating that the court has jurisdiction to pass a decree without issuing summons to the defendant in a partition suit.
Issues: Validity of final decree in execution, jurisdiction of the court to pass a decree without issuing summons to the defendant, and the rights of an exparte defendant to challenge the decree.
Ratio Decidendi: A suit for partition is deemed pending until the final decree is passed, and an exparte defendant aggrieved by the decree must seek relief through the well-known modes provided by the Code, such as an application to set aside the decree, appeal, or review.
Final Decision: The second appeal was allowed, the decision of the lower appellate court was set aside, and the decision of the execution court was restored. No order as to costs was given.
T.K. Joseph, J.
The short question for decision is whether a defendant in a suit for partition who chooses to remain exparte can plead in execution that the final decree is void. The execution court before which the respondents (defendant 63 and mortgagee) questioned the validity of the decree held against them but in appeal the lower appellate court reversed the order. Defendants 26 to 31 and 110 on whose application the final decree was passed and whose execution petition has been dismissed have preferred this second appeal.
2. We are unable to uphold the decision of the lower appellate Court. The 63rd defendant was served with summons but she chose to remain exparte.
So the question whether a Court has jurisdiction to pass a decree without issuing summons to the defendant, covered by the decision in 29 TLJ. 574 (F.B) does not arise for decision. A suit for partition must be deemed to be pending until the final decree is passed (see AIR. 1940 P.C. 11) and a defendant who chose to remain exparte and who is aggrieved by the decree must get it set aside by resorting to one of the well known modes provided by the Code such as an application to set aside the decree, or appeal or review. Although we are hearing the second appeal, the powers we exercise in this case are really those of the execution Court. It may be open for the respondents to seek appropriate relief in the proper Court subject to such objections as to limitation or otherwise as the other parties may be entitled to raise. Sitting on the execution side we must hold that the Court has only to execute the decree as it stands.
3. We therefore allow the second appeal, set aside the decision of the lower appellate Court and restore that of the execution Court. In the circumstances of the case there will be no order as to costs.
Allowed.
