BEEPATHUMMA Vs. ABDUL KADAR MOOPPEN
HIGH COURT OF KERALA
ABDUL KADAR MOOPPEN
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(1.) The second defendant is the revision petitioner. The revision petition is from an order refusing to restore to file a suit which was dismissed for default. The suit was one for partition. A preliminary decree for partition was passed on 6.5.1121. Under the preliminary decree the seventh defendant was declared to be entitled to 5/62 share in the suit properties. The case was posted to 1.7.1121 for application for the issue of a commission to divide the properties by metes and bounds and to 25.7.1121 for passing the final decree. No steps were taken by any party for dividing the properties and the court suo moto adjourned the case to 17.8.1121/30.3.1946. On that date the suit was dismissed on the ground that neither the plaintiff nor his counsel was present and that no steps were taken by any of the parties for getting the properties divided. A decree dismissing the suit was also drawn up.
(2.) On 16.6.1951 the seventh defendant filed a petition, M.P. 776 of 1951, for restoring the suit to file. The petition, purported to be under O.47 R.1 and S.151 of C.P.C. M.P. 774 of 1951 was filed by her on the same day for passing a final decree in the case and M.P. 775 of 1951 was filed for condoning the delay in filing M.P. 774 of 1951. The main petition was M.P. 776 of 1951. It was contended by the seventh defendant that the dismissal of the suit was without jurisdiction. Defendants 1 and 3 to 7 opposed the petition contending that it was not maintainable and was barred by limitation. The seventh defendant filed M.P. 1378 of 1952 for condoning the delay in filing M.P. 776 of 1951. The court below held that since the seventh defendant did not seek to have the order dismissing the suit set aside by appropriate steps taken within the time prescribed by law, the petition was not maintainable. It was also held that there was no satisfactory explanation for the long delay in filing the restoration petition. The petition was accordingly dismissed.
(3.) It was contended for the revision petitioner that the order dismissing the suit after a preliminary decree was passed in the case was one passed without jurisdiction, that it could be ignored and that it was, therefore, not necessary to have it set aside. It was also contended that in any case the court could set it aside at any time in the exercise of its inherent jurisdiction.;
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