Madras High Court
Chandramohan vs Rangammal (Died) on 17 December, 2021
C.R.P.(NPD).No.2813 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.(NPD).No.2813 of 2021
1.Chandramohan
2.Thilagavathy .. Petitioners
Vs.
Rangammal (Died)
Saraswathi .. Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, praying to allow the Civil Revision Petition and direct
to take on file of the I.A. filing number R/R256/2021 in O.S.No.385 of 2010
on the file of the District Munisf Court, Gobichettipalayam without asking
for maintainability which was returned on 22.10.2021.
For Petitioners : Mr.S.P.Yuaraj
*********
ORDER
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C.R.P.(NPD).No.2813 of 2021
Challenge in this Revision is to the order of the learned District
Munsif, Gopichettipalayam, returning the petition filed by the petitioners
seeking a final decree in O.S.No.385 of 2010.
2. The suit in O.S.No.385 of 2010 was instituted by one Rangammal
seeking partition and separate possession of her 7/9th share in the suit
property. The defendants, who are the petitioners herein, resisted the suit
contending that the said Rangammal is not entitled to 7/9th share. The suit
came to be decreed declaring ½ share of Rangammal and a preliminary
decree came to be passed. The defendants did not pay the Court fee and
seek a declaration of their rights. After the decree, the defendants have come
up with this application seeking passing of a final decree.
3. The trial Court returned the application questioning its
maintainability, on the ground that there is no preliminary decree in favour
of the defendants and a final decree application at their instance will not lie.
The same was re-presented stating that the judgment declares the right of
the defendants and therefore, they can pay Court fee and seek a final decree.
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C.R.P.(NPD).No.2813 of 2021
The learned District Munsif was not convinced with the explanation offered
and returned the application again stating that the preliminary decree does
not allot any share to the defendants and hence, they will have to seek a
supplementary preliminary decree before seeking a final decree.
4. Mr.S.P.Yuaraj, learned counsel appearing for the petitioners would
contend that the defendants have paid the Court fee and therefore there is no
bar for the Court to pass a final decree.
5. I am unable to agree with the submission of the counsel. In a
partition suit, it is open to the defendants to seek a preliminary decree by
paying Court fee either at the time of trial or subsequently. Unless there is a
preliminary decree declaring their share, the defendants cannot seek a final
decree. Their right to seek a supplementary preliminary decree is not taken
away. But, at the same time, they cannot proceed further without obtaining
the supplementary preliminary decree.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.2813 of 2021
R.SUBRAMANIAN, J.
dsa
6. Hence, I do not see any merits in this Revision, the Revision
therefore fails and it is accordingly dismissed. No costs. It is open to the
petitioners to seek supplementary preliminary decree and thereafter file an
application for passing of final decree.
17.12.2021
dsa
Index : Yes/ No
Internet :Yes/ No
Speaking order / Non-Speaking order
To
The District Munisf, Gobichettipalayam.
C.R.P.(NPD).No.2813 of 2021
https://www.mhc.tn.gov.in/judis
