The High Court · 2025

BY ADV SRI.G.GIREESH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON

25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C)No.1569/2016 6 JUDGMENT Dated this the 25th day of March, 2025 The petitioner is the 6th defendant in OS No.248/1975. He preferred Ext.P1 application before the Munsiff Court, Taliparamba, for permitting him to remit the Court Fee which is necessary for allotting his shares in the final decree of a partition suit.

2. The application was submitted after the delay of 37 years from the date of passing the decree.

3. The learned Counsel appearing for the petitioner guided me through the judgment passed by this Court in OP(C) No.1570 of 2016, which is also arising from the same suit.

4. It is submitted by the learned counsel for the petitioner that the petitioner in the said case was one of the legal heirs of 5th defendant and he also omitted to pay the required fee at the appropriate stage and this Court has permitted him to pay the court fee. The judgment reads as follows; The original petition is filed to set aside the order dated 11.04.2016 in IA No.2535/2015 in IA No.1038/1976 in OS No.248/1975 of the Court of the Munsiff, Taliparamba.

2. The petitioner and the respondents 1 to 4 in the original petition are the legal heirs of the 5th O.P.(C)No.1569/2016 7 respondent in IA No.1038/1976. As per Exhibit C2 commission report that was filed in the final decree application, the deceased 5th respondent – predecessor in interest of the petitioner and the respondents 1 to 4 were allotted plot B in the plaint schedule property. However, when the final decree was prepared, the plot ‘B’ has been omitted to be mentioned. Accordingly, the petitioner had filed IA No.2535/2015 to correct the final decree. But, the court below has by the impugned Exhibit P2 order dismissed 2022:KER:28980 OP(C) NO. 1570 OF 2016 6 the application on the ground that it cannot be ascertained whether there has been an accidental omission or whether plot ‘B’ has been avoided on any finding. Exhibit P2 order is erroneous and wrong. Hence the original petition.

3. Heard Sri. Mathew Kuriakose, the learned counsel appearing for the petitioner. Even though service of notice is complete on the respondents, there is no appearance for them.

4. On a perusal of Exhibit P2 impugned order, it is evident that, as per Exhibit C2 commission report, the Advocate Commissioner has clearly suggested that plot ‘B’ to be allotted to the predecessor in interest of the petitioner and respondents 1 to 4 – the 5th respondent in the final decree application. Nevertheless, when the final decree was prepared, the said plot has been omitted to be included in the final decree. Even though Exhibit P1 O.P.(C)No.1569/2016 8 application was filed, and the respondents in the application reporting that they had no objection in the 2022:KER:28980 OP(C) NO. 1570 OF 2016 7 application being allowed, the execution court has dismissed the same.

5. On a consideration of the pleadings and materials on record, I find that the mistake has been committed by the court below. The mistake of the court below cannot prejudice the petitioner and the respondent 1 to 4, who cannot be left remediless. Therefore, I hold that Exhibit P1 application is to be allowed, by directing the court below to correct the error in the final decree, in the light of Exhibit C2 commission report, otherwise, it would cause severe prejudice to the petitioner and the respondents 1 to 4. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I set aside Exhibit P2 order and allow Exhibit P1 application. The court below is directed to correct the decree by including plot ‘B’ on the basis of Exhibit C2 in the amended decree. The amended decree shall be issued to the petitioner in accordance with law, as 2022:KER:28980 OP(C) NO. 1570 OF 2016 8 expeditiously as possible, at any rate within a month from the date of receipt of a copy of this judgment. As this Court has already permitted a similar request O.P.(C)No.1569/2016 9 made by the another defendant, this petition can also be allowed, in the same lines. Therefore, the Original Petition is allowed. The Ext.P2 order is setaside and thereby Ext.P1 application is allowed. The learned Munsiff, Taliparamb, is directed to modify the decree by including plot C in Ext.C2 and and Plot C in Ext.C6, in the amended decree. The amended decree shall be issued to the petitioner in accordance with law. HKH/25.03.2025 Sd/- P. KRISHNA KUMAR, JUDGE O.P.(C)No.1569/2016 10 APPENDIX OF OP(C) 1569/2016 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P2 TRUE COPY OF THE APPLICATION, DATED 22- 09-2015 IN IA NO 2534/2015 IN I.A NO 1038 OF 1976 IN O.S NO 248 OF 1975 ON THE FILES OF THE MUNSIFF COURT, TALIPARAMBA TRUE COPY OF THE ORDER DATED 11-04-2016 IN I.A NO 2534/2015 IN I.A NO 1038 OF 1976 IN O.S NO 248 OF 1975 ON THE FILES OF THE MUNSIFF COURT, TALIPARAMBA