The court reinforced the necessity of notice in partition proceedings and upheld the procedural exclusion of properties to facilitate timely resolution.

JUDGMENT

Dated this the 5th day of November, 2021 The challenge in this original petition is against Exts.P8 and P9 orders by which the petitioner's applications for condation of delay of 2316 days and for reviewing Ext.P3 order were dismissed. The essential facts, leading up to the impugned order, are as under;

The predecessors-in-interest of the petitioner and respondents, namely, S.P.Luiz and Dorris Luiz, had extensive properties in their possession. S.P.Luiz and Dorris Luiz had five children, Dennis, Edward, Cherubinina, Heather (petitioner herein) and Regina. After the death of their parents, the children partitioned some of the properties as per document No.3346 of 1978 of SRO Edappally. Later, Dennis died and his wife and children (respondents 1 to 4 herein) filed O.S.No.652 of 1995 before the Sub Court, Irinjalakkuda praying for partition and separate possession of their 1/4th share. In the suit, Ext.P1 preliminary decree was passed, allowing the plaintiffs to recover separate possession of their 1/4th share, after partition of the plaint schedule properties by metes and bounds. The plaintiffs were also allowed to recover 1/4th share from the mesne profits, after deducting the amount, if any received by them. As per the decree schedule, the immovable properties comprise of item Nos.1 and 2 in A schedule, item No.1 to 3 in B schedule, C schedule and D schedule. E schedule is the list of the movables.

3. Based on the preliminary decree, the proceedings for passing final decree commenced by appointing an Advocate Commissioner to identify, measure and demarcate A to D schedule properties. Since C schedule property, having an extent of

99.5 Acres in Kothamangalam Village, was found to be in the possession of strangers and lying without demarcating boundaries, the identification and measurement of that property turned out to be difficult and time consuming. As a result, proceedings for partition of the other properties were also getting delayed, in spite of the measurement and demarcation being completed. Hence, the plaintiffs filed I.A.No.5049 of 2013, praying to exclude C schedule property from the final decree proceedings, without prejudice to their right to file a separate final decree application with respect to C schedule in future. None of the parties raised objection against the prayer for excluding C schedule. Hence, the court below allowed I.A.No.5049 of 2013 vide Ext.P3 order dated 30.06.2014. Much later, on 11.11.2020, the petitioner filed I.A.Nos.6 and 7 of 2020 seeking to review the order in I.A.No.5049 of 2013 after condoning the delay of 2316 days. Review was sought on the premise that she was not served with notice in I.A.No.5049 of 2013 and therefore had no occasion to submit objection to the prayer for excluding C schedule. By Ext.P9 order, the court below dismissed the application for condonation of delay, finding that the petitioner had failed to offer sufficient explanation for the inordinate delay of 2316 days. Consequently, the review application was also dismissed vide Ext.P8 order.

4. Heard Senior Counsel Sri.S.Sreekumar appearing for the petitioner, M/s.Geetha Job(Ozhukayil) and Deepulal Mohan appearing for the respondents.

5. Learned Senior Counsel contended that the order in I.A.No.5049 of 2013 is patently illegal, inasmuch as the order was passed without serving notice on the petitioner and without obtaining her consent. It is contended that the petitioner has serious objection against exclusion of C schedule property from the final decree proceedings, since of that property having a large extent, will impact the partition of the other properties, which are of lesser extent and an equitable partition will be possible only if C schedule is included in the hotchpotch. The finding that notice in I.A.No.5049 of 2013 is seen to have been served on the the petitioner's Counsel’s Clerk is assailed by contending that, certified copy of I.A.No.5049 of 2014 does not contain any endorsement by the Clerk, of