LIMITATION ACT-1963

Querist : Anonymous (Querist) 12 September 2010 This query is : Resolved
IN A PARTITION SUIT, AN EXPARTE DECREE IS PASSED. THE DECREE IS BAD IN LAW. THE COURT HAS NOT APPLIED THE AMENDED ACT OF HINDU SUCESSION ACT. TWO FEMALE CHILDREN GOT 1/20 SHARE IN THE PROPERTY AND MALE CHILDREN GOT 6/20 SHARE.THE PROPERTY BELONGED TO THE FATHER OF THE LITIGANTS. THE FINAL DECREE PROCEEDINGS ARE GOING ON AND IS POSTED TO NEXT DATE.WHETHER THE JUDJEMENT/PRELIMINARY DECREE CAN BE CHALLENGED IN THE FINAL DECREE PROCEEDINGS AND SET ASIDE AS IT IS THE CONTINUATION OF THE SUIT.

2] OUR APPEAL IN THE HIGHER COURT MAY NOT STAND AS IT IS ALREADY DELAYED BY 10 YEARS DUE TO CERTAIN VALID REASONS. ONE OF THE DEFENDANTS LEFT THE PLACE AND NO NOTICE WAS SERVED ON HER. ADVOCATE REPORTED NO INSTRUCTIONS TO THE COURT WITHOUT THE KNOWLEDGE OF THE PARTY. PARTY IS NOT THAT EDUCATED/FAMILIAR IN THE COURT MATTERS.PL.GUIDE US WITH SOME CITATIONS.

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s.subramanian (Expert) 12 September 2010
You can file a petition to set aside the exparte decree. Only thing is you have to make out some strong grounds for condoning the delay in filing the petition.Do not miss the chance under some misconceptions or misapprehensions. Do it immediately and try your chance. Best of luck.

Querist : Anonymous (Querist) 12 September 2010
MY QUESTION IS WHETHER THE PRELIMINARY DECREE CAN BE SET ASIDE IN THE ONGOING FINAL DECREE PROCEEDINGS CITING THAT THE DECREE IS BAD IN LAW.

ALSO IF APPEAL PREFERRED IN HIGHER COURT, WHETHER I CAN PROCEED UNDER THE REASON THAT NOTICES RETURNED UN-DELIVERED-PARTY WAS NOT STAYING IN THE ADDRESS MENTIONED IN THE ORIGINAL SUIT WHICH IS A FACT.

R.Ranganathan (Expert) 12 September 2010
Final Decree is only for the purpose of division of the property by metes and bounds and to confirm the preliminary decree. No new grounds can be brought in since mostly the Final decree is always a follow up procedure. So the preliminary decree cannot be set aside as it is in the Final Decree petition. If you have any grievances, you have to approach the court for setting aside the exparte Preliminary decree only or move the higher court by way of appeal challenging the preliminary decree.