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Madras High CourtCRP(MD)/1292/2018allowed

Shanmugasundaram v. Venkateswaran

2019-09-16Honourable Mr Justice Krishnan Ramasamy4 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.09.2019

CORAM:

THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY C.R.P(NPD)(MD)No.1292 of 2018 and C.M.P.(MD)No.5451 of 2018 Shanmugasundaram ... Revision petitioner / Petitioner / Plaintiff Vs.

1.Venkateswaran Padmanaban (died) Gopalakrishnan (died) Jayalakshmi Ammal (died) Arunachala Vadivu (died) Valliammal (died) 2.Dr.Palvannan 3.Abranandam 4.Auvaiyar 5.Thirumalai Ammal 6.Pushpam Indira (died) 7.Banumathi 8.Krishnaveni 9.Palvannan 10.Rajeswari 11.Arockiaraj 12.Palvannan 13.G.Palvannan 14.G.Gurunathan 15.G.Revathi 16.Sankaranarayanan 17.Hariharan 18.Balu 19.Leelavathi 20.Kuzhalvai Mozhi 1/4

21.Veeralakshmi 22.Lalitha 23.Anni Besant Ammaiyar 24.Minor Shri, D/o.Sadhasivam rep. by mother and next friend Anni Besant Ammaiyar

...Respondents 1 to 24 /

Respondents 1 to 33 / Defendants (Respondents 1, 3, 4, 5 and 7 to 24 are not necessary parties, hence given up) PRAYER: Civil Revision Petition is filed, under Under Section 115 of CPC Constitution of India, against the fair and decreetal order dated 10.04.2018 made in E.P.No.10 of 2016 in O.S.No.42 of 1980 on the file of the District Munsif cum Judicial Magistrate's Court at Sivagiri.

For Petitioner : Mr.M.V.Venkataseshan For Respondents : Mr.V.M.Balamohan Thampi

O R D E R

This Civil Revision Petition has been filed against the order of dismissal, dated 10.04.2018 passed in E.P.No.10 of 2016 in O.S.No.42 of 1980, by the learned District Munsif cum Judicial Magistrate, Sivagiri, wherein and whereby it is stated that the respondents 2, 4, 12, 17, 18 and 21 in the Execution Petition were passed away and therefore, the petitioner is supposed to have taken steps to implead the legal heirs of the said respondents and that since the petitioner in the Execution Petition failed to take any steps to implead the legal heirs, the Court below has dismissed the Execution Petition stating that the legal heirs of the respondents 2, 4, 12, 17, 18 and 21 also have right in the property. 2.

The learned counsel for the revision petitioner filed an affidavit stating that at present only R2/R7, R3/R8 and R6/R11 are in the possession of the property in question. Therefore, if any order is passed by the Court below, since these three respondents are occupying the property, it would be sufficient to meet out the ends of justice. Further he contended that the Court below without considering the fact that the petitioner/plaintiff can choose the respondent to execute the decree and it is not necessary to implead all the respondents to execute the decree, provided, if they already duly complied with the order of the Court below and vacated the premises.

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3.On the other hand, the learned counsel for the respondents 2, 3 and 6 would fairly contend that the affidavit may be taken on record and appropriate orders may be passed.

4.Taking into consideration of the averments and submissions made by both the counsels and the affidavit filed by the petitioner stating that only the respondents 2, 3 and 6 are in the possession of the property in question, this Court is of the view that the petitioner/plaintiff can choose the respondent to file Execution Petition. Even in the suit, for example 10 defendants are there, if eight defendants are fully complied with the order of the Court, it is not necessary to implead all the respondents and only those who are not complied with the decree can be impleaded as contesting respondents and remaining parties impleaded only as a formal parties.

5.In such view of the matter, the order passed by the Court below is not legally sustainable and hence, the same liable to be set aside holding that as on date only the respondents 2, 3 and 6 are holding the property and the remaining parties are only formal parties and it is for the revision petitioner who are all respondents need to be impleaded while filing the Execution Petition.

6.Accordingly, this Civil Revision Petition is allowed. This Court directed the Court below to dispose of the suit in O.S.No.42 of 1980, within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.

Sd/- Assistant Registrar (CO) // True Copy // Sub Assistant Registrar(CS) To The District Munsif-cum-Judicial Magistrate, Sivagiri. Copy to:

The Section Officer, VR.Section, Madurai Bench of Madras High Court, Madurai.

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+1 CC to M/s.V.M BALAMOHAN THAMBI, Advocate ( SR-87139[F] dated 17/09/2019 ) +1 CC to M/s.M.V. VENKATASESHAN, Advocate ( SR-86999[F] dated 17/09/2019 ) Order made in 16.09.2019 rj2 JMN(25.09.2019) 4P : 6C 4/4