Madras High Court
Muthappan vs Thankappan on 9 March, 2022
C.R.P.(MD)No.2204 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.R.P.(MD)No.2204 of 2017
1.Muthappan
2.M.Raju
3.Jasmine Sheeba ... Petitioners
-vs-
1.Thankappan
2.Thankaraj ... Respondents
Prayer :- Petition filed under Section 115 of the Code of Civil Procedure,
to set aside the fair and decreetal order dated 07.07.2017 in E.A.No.199
of 2016 in E.P.No.46 of 2015 in O.S.No.140 of 2013 on the file of the
Principal District Munsif Court, Kuzhithurai, Kanyakumari.
For Petitioners : Mr.S.Ramakrishnan
For R2 : Mr.N.Subramanian
For R1 : No appearance
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C.R.P.(MD)No.2204 of 2017
ORDER
This civil revision petition is filed challenging the order passed by
the learned Principal District Munsif, Kuzhithurai, Kanyakumari in
E.A.No.199 of 2016 in E.P.No.46 of 2015 in O.S.No.140 of 2013 on the
file of the Principal District Munsif, Kuzhithurai, Kanaykumari.
2.The application in E.A.No.199 of 2016 was filed by the revision
petitioner herein to reissue the delivery list to the Amin to include C and
D schedule properties in the delivery list on the ground that the final
decree was passed allotting plot 'A' measuring 0.750 sq.links of Ex.C.2
plan which is part of the D schedule property, but the Amin has omitted
to exclude C and 'D' schedule property in his delivery list accidently.
Therefore, it is necessary to include C and D schedule property in the
delivery list. Therefore, the petitioner filed the above execution
application. However, the Court below, after hearing both parties, passed
the very detailed order in dismissing the above application and relevant
portions are extracted hereunder:-
4.Heard. Records perused. On perusal of the
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C.R.P.(MD)No.2204 of 2017
records it is found that the petitioner/decree holder has
filed the suit in O.S.No.140 of 2013 for partition of 1/3 rd
reight in D schedule property and the same was decreed
and final decree was passed allotting Plot A of Ex.C2
plan and on the basis of final decree the
petitioner/decree holder filed execution petition for
delivery of the same and this Court by order dated
03.11.2015 was ordered for delivery of Plot A measuring
0.750 cents of Ex.C2 plan and thereafter the Amin
visited the property and filed delivery list and so this
Court terminated the EP on 04.12.2015 stating tha
“Amin report perused, delivery effected, Amin executed
the warrant as per the decree list submitted hence EP is
terminated” and now the petitioner/decree holder has
sought to reissue the delivery list on the ground that
though the property was delivered as per the decree, the
Amin has omitted to mention the C and D schedule
property in the delivery list that is found in the plaint
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C.R.P.(MD)No.2204 of 2017
and decree and so sough to include the said C and D
schedule property in the delivery list.
5.For which the respondent strongly objections
that there is no plot like D schedule property on land
and D schedule property is a boundary which is only
pathway available to the judgment debtors only on the
compromise made by the Decree Holder the respondent
has not diligently proceed with the case and so sought to
dismiss the petition.
6.Admittedly, in the plaint there was four schedule
properties as 'A' to 'D' schedule properties. D schedule
property is the area measuring 2.250 cents, in which the
plaintiff has sought for partition of his 1/3rd share and
the same was decreed and plot A measuring 0.750 cents
of Ex.C2 plan was allotted and therefore, execution
petition was filed in which delivery of the plot A of
Ex.C2 plan measuring 0.750 cents was ordered and
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C.R.P.(MD)No.2204 of 2017
Amin was deputed. Amin after executing the warrant
filed delivery list. Now the petitioner seek to include C
and D schedule property in the delivery list. Amin was
examined as CW1 and he reported that as per decree he
delivered the property. But there is no mentioning about
all the schedule properties that is mentioned in the
plaint and the decree. Admittedly it is not the case of
the petitioner that plot A of Ex.C2 plan was not
delivered and the delivery order was passed by this
Court is very clear that plot A of C2 plan of the schedule
property was ordered to be delivered to the petitioner
and the same was effected by Amin and therefore non
mentioning of the same in the delivery list no way affect
the petitioner. Hence, this Court is not inclined to allow
this application.
3.On a perusal of the order, it is very clear that D schedule
property was about 2.250 cents. The suit was decreed allotting 1/3rd of
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C.R.P.(MD)No.2204 of 2017
the share in D schedule property in favour of the petitioner herein and
1/3 was marked in the plan as Ex.C2 in favour of the plaintiff to the
extent of 0.750 cents and the same was already handed over to the
petitioner. Therefore, the Court has come to the conclusion that as per
the decree and the order passed by the Court below in the Execution
Petition, the Amin was visited the property and handed over the property
and nothing left to hand over.
4.This Court has also perused the same and does not find any
error in the order of the Court below. Hence, this Court of the view that
order passed by the Court below is correct and the same need not
interfered with. Accordingly, this Civil Revision Petition is dismissed.
No costs.
09.03.2022
Index : Yes/No
Internet : Yes/No
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Note:-
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C.R.P.(MD)No.2204 of 2017
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the
order that is presented is the correct copy, shall be the
responsibility of the Advocate / litigant concerned.
To
The Principal District Munsif Court,
Kuzhithurai,
Kanyakumari.
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C.R.P.(MD)No.2204 of 2017
KRISHNAN RAMASAMY, J.
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C.R.P.(MD)No.2204 of 2017
Dated: 09.03.2022
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