Madras High CourtCRP(MD)/678/2009allowed

Kamalam v. Kamatchi

2020-02-13Honourable Mr Justice R. Subramanian3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.02.2020 CORAM :

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN and M.P(MD)No.2 of 2009 1.Kamalam 2.Sivashanmugam

...Petitioners/Respondents No.9 & 10/

Defendants 10 & 11 Vs.

1.Kamatchi ...1st Respondent/Petitioner/2nd Defendant 2.Vellayammal 3.Vijayalakshmi ... Respondents 2 & 3/Respondents 1 & 2/ Plaintiffs

4. Rajathi 5.Chellammal @ Solaiyammal 6.Santhanam 7.Mariyayee @ Marakkal 8.Angammal @ Maniya 9.Govindammal 10.Boopathi 11.Ramesh 12.Selladurai 13.Narayanan 14.Marimuthu 15.Meenakshi 16.Nallathambi 17.Perumal

...Respondents/Respondents

3 to 8 & Respondents 11 to 18/ Defendants NO. 3 & 4, Defendants 6 to 9 & Defendants 12 to 19 1/3

18.Mariyayee @ Kilikungi 19.Muthumani ..Respondents/Respondents 19 & 20/third party in OS Lrs of Defendant No.5 PRAYER: Civil Revision Petition is filed under Section 115 of C.P.C against the fair and decreetal order dated 21.04.2009 made in E.P. No.223 of 2007 in O.S.No.1258 of 1990 on the file of the District Munsif Court, Karur.

For Petitioner : Mr.R.Vijayakumar For R1 : Mr.D.Nallathambi R2 TO R19 are given up vide in EB

O R D E R

This Civil Revision Petition has been filed against the order directing delivery of one item of property which was not allotted in the final decree for partition suit in favour of the third respondent. The main ground, on which the order of delivery challenged, is that the property sought to be delivered was not allotted to the third respondent in the final decree.

2. I have heard Mr.R.Vijayakumar, learned counsel appearing for the petitioner and Mr.Nallathambi, learned counsel appearing for the contesting respondent.

3. The fact that the property which is sought to be delivered has been allotted to the third respondent in the final decree passed on 22.01.2003 is almost admitted by the third respondent by filing an application in I.A.No.32 of 2015 before the trial court seeking supplementary final decree.

4. It is also seen from the records that though the judgment in I.A.No.497 of 2001 allots the properties in the Commissioner's report to the third respondent. But the same has not been reflected in the decree.

5. In view of the above, the order of delivery passed by the Executing Court in E.P.No.223 of 2007 on 21.04.2009 will have to be necessarily set aside since it directs the delivery of property which was not allotted to the third respondent.

6. Accordingly, the order dated 21.04.2009 is set aside. The learned District Munsif, Karur, is directed to dispose of I.A.No.32 of 2015 within a period of three months from the date of receipt of a copy of this order.

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7. In the result, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(Writs) // True Copy // / /2020 Sub Assistant Registrar(CS) CM To, The District Munsif Court, Karur.

+1 CC to M/s.R.VIJAYAKUMAR, Advocate SR-6413[F] dated 14/02/2020 +1 CC to M/s.D.NALLATHAMBI, Advocate SR-6458[F] dated 14/02/2020 and M.P(MD)No.2 of 2009 13.02.2020 DB(CO) TR(12.03.2020)3P 4C 3/3