Madras High Court
Karthieyani vs M.Armugasami on 9 March, 2023
C.M.A. (MD)No.22 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.SA.(MD)No.22 of 2021 and
CMP(MD).No.3360 of 2021
Karthieyani ...Appellant/ third party
Vs.
1.M.Armugasami
2.Annamalaikani
3.Anees Kasiram
4.Aravind Kasiram Respondents
PRAYER: This Civil Miscellaneous Second Appeal is filed under Order
21 Rule 97 Section 100 CPC against the fair and decreetal order, dated
04.01.2021 passed in CMA.No.33 of 2020 on the file of the Additional
District and Sessions Court / Fast Track Court, Tenkasi confirming the fair
and decreetal order, dated 07.01.2020 passed in E.A.No.183 of 2018 in
E.P.No.7 of 2016 in O.S.No.265 of 2003 on the file of the Principal
Subordinate Judge, Tenkasi.
For Appellant : Mr. V. Meenakshisundaram
For R1 : Mr.R.J. Karthick
1/5
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.22 of 2021
JUDGMENT
This Civil Miscellaneous Second Appeal has been filed against
the fair and decreetal order, dated 04.01.2021 passed in CMA.No.33 of
2020, on the file of the Additional District and Sessions Court / Fast Track
Court, Tenkasi, confirming the fair and decreetal order, dated 07.01.2020
passed in E.A.No.183 of 2018 in E.P.No.7 of 2016 in O.S.No.265 of 2003,
on the file of the Principal Subordinate Judge, Tenkasi.
2. The brief facts, leading to the filing of this Civil
Miscellaneous Second Appeal, are as follows:-
The 1st respondent had obtained a decree and Judgment for
declaration of possession as against the husband of the appellant / 2nd
respondent herein in O.S.No.265 of 2023, on the file of the Sub Court,
Tenkasi, on 12.03.2008. The said decree was put in enforcement in
E.P.No.7 of 2016 before the Sub Court, Tenkasi. When the above said E.P
was pending, an E.A has been filed by the wife, Judgment Debtor viz.,
appellant herein to obstruct the delivery on the ground that she has a right
of residence in the matrimonial home. She has also taken a stand that she
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C.M.A. (MD)No.22 of 2021
was residing separately from her husband and hence, she has a right of
residence in the said property. However, the learned Subordinate Judge,
Tenkasi considering the fact that there is no decree of divorce obtained
and there is no evidence to show that the petitioner / appellant herein was
living separately, dismissed the obstruction petition filed by the appellant
confirming the Judgment and decree passed in O.S.No.265 of 2023, on the
file of the Sub-Court, Tenkasi. Against which, the appellant has filed an
appeal in in CMA.No.33 of 2020, on the file of the Principal District
Court, Tirunelveli and the learned Judge has also confirmed the order of
the Subordinate Judge, Tenaski, as against which, the present Civil
Miscellaneous Second Appeal has been filed by the appellant.
3. The learned counsel for the appellant submitted that the
execution petition in E.P.No.7 of 2016 itself was disposed of on
03.09.2021 and delivery has been effected and recorded.
4. Such view of the matter, nothing survives for adjudication
in the above Civil Miscellaneous Second Appeal. It is to be noted that
when the decree has been obtained against the husband of the appellant
filing of application by the wife resisting the delivery itself is motivated
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C.M.A. (MD)No.22 of 2021
and without establishing the factum of divorce or any charge over the the
property towards maintenance, such plea cannot be entertained as a matter
of right. I do not find any merit in the Civil Miscellaneous Second Appeal
and accordingly, the Civil Miscellaneous Second Appeal is dismissed. No
costs. Consequently, the connected Miscellaneous Petition is closed.
09.03.2023
Index : Yes/No
Internet : Yes/No
trp
To
1. The Additional District and Sessions Court / Fast Track Court, Tenkasi
2. The Principal Subordinate Judge, Tenkasi.
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.22 of 2021
N.SATHISH KUMAR, J.
trp
C.M.SA.(MD)No.22 of 2021 and
CMP(MD).No.3360 of 2021
09.03.2023
https://www.mhc.tn.gov.in/judis
