Madras High Court
Kuppan vs Narayanan on 25 February, 2021
CRP.NPD.No.2941 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.02.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.2941 of 2016
and
CMP.No.14939 of 2016
1.Kuppan
2.Ponnuswamy ..Petitioners
Vs.
Narayanan ..Respondent
PRAYER:
The Civil Revision Petition is filed under Section 115 of CPC
against the order dated 24.06.2016 made in EP.No.13 of 2011 in
OS.No.69 of 2006 on the file of the District Munsif cum Judicial
Magistrate Court, Uthiramerur.
For Petitioners : Mr.Y.Jyothish Chander
For Respondent : Mr.V.K.R.Balakrishnan
ORDER
This civil revision petition is filed against the order dated
24.06.2016 made in EP.No.13 of 2011 in OS.No.69 of 2006 on the file
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CRP.NPD.No.2941 of 2016
of the District Munsif cum Judicial Magistrate Court, Uthiramerur
thereby directed the respondent to execute decree passed in OS.No.69 of
2006 for specific performance.
2. The petitioners are defendants in the suit filed by the
respondent for specific performance in respect of the suit schedule
property in OS.No.69 of 2006. At the same time, the sister of the
petitioners herein filed another suit in OS.No.97 of 2006 for partition
including the suit schedule property in OS.No.69 of 2006. In fact, the
respondent who is agreement holder is also one of the defendant in the
partition suit. Both the suits were decreed and aggrieved by the same, the
defendants in both the suits filed appeal suit in AS.Nos.50 of 2009 and 20
of 2010 and both the appeal suits were allowed and set aside the
judgment and decree passed by the trial court. Aggrieved by the same,
the respondent herein namely decree holder in the specific performance
suit filed two second appeals before this Court in SA.Nos.1556 and 1557 of
2010. This court set aside the judgment and decree passed in appeal suit
and restored the judgment and decree passed by the trial court in
OS.No.69 of 2006 for specific performance. In respect of the decree of
partition is concerned, in SA.No.1566 of 2010 this Court directed the
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CRP.NPD.No.2941 of 2016
respondent and the plaintiff in the partition suit to work out their equity in
the final decree proceedings in OS.No.97 of 2006 for partition on the file of
the District Munsif, Uthiramerur by stepping into the shoes of the
petitioners herein to the extent possible and accordingly the court below
shall work out equity and deal with the matter.
3. While being so, the respondent without following the
directions issued by this Court i.e. without filing petition for final decree in
the partition suit in OS.No.97 of 2006, straightaway filed execution petition
in EP.No.13 of 2011 for execution of the decree passed in the specific
performance suit in OS.No.69 of 2006 in respect of the suit schedule
property. It is curious note that 10th item of the suit property in the
partition suit is the subject property in the suit for specific performance.
Therefore, while allowing the second appeal, this Court specifically
directed the respondent and the plaintiff in the partition suit to work out
their equity in the final decree proceedings. Unfortunately the execution
court allowed the petition for the reason that the proceedings has not
attained finality in OS.No.97 of 2006 is not at all subject matter of the suit
property in OS.No.69 of 2006.
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CRP.NPD.No.2941 of 2016
4 It is for the petitioner to work out their remedy in OS.No.97 of
2006 as per the judgment passed in SA.No.1567 of 2010. As stated supra,
the 10th item of the partition suit is the subject property of the specific
performance suit. Therefore, it would be appropriate for the respondent to
file petition for final decree and after allotment of the property to the
petitioners herein, he can very well execute the decree of specific
performance. Without allotting the property as per the partition decree,
the decree of the specific performance cannot be executed.
5. In view of the above discussion, this civil revision petition is
allowed and the order dated 24.06.2016 made in EP.No.13 of 2011 in
OS.No.69 of 2006 on the file of the District Munsif cum Judicial
Magistrate Court, Uthiramerur is set aside. It is made clear that this
Court already directed the respondent as well as the plaintiff in the
partition suit in OS.No.97 of 2006 to work out their equity in the final
decree proceedings by stepping into the shoes of the petitioners herein to
the extent possible and accordingly the court below shall work out the
equity and deal with the matter. After filing final decree application, the
court below is directed to follow the direction issued by this Court in
SA.No.1567 of 2010. The court below is also directed to dispose of the
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CRP.NPD.No.2941 of 2016
final decree application within a period of twelve weeks from the date of
receipt of the application. Consequently, connected miscellaneous petition
is closed. No order as to costs.
25.02.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.2941 of 2016
G.K.ILANTHIRAIYAN,J.
lok
To
The learned District Munsif cum
Judicial Magistrate,
Uthiramerur.
CRP.NPD.No.2941 of 2016
25.02.2021
https://www.mhc.tn.gov.in/judis/
