Madras High Court
Kuthalingam vs Meenakshi Sundaram on 29 March, 2023
C.R.P(MD)No.866 and 867 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.03.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.866 and 867 of 2023
and
C.M.P(MD) No.3939 and 3941 of 2023
C.R.P(MD)No.866 of 2023
Kuthalingam ...Petitioner/Respondent/
Defendant
Vs.
Meenakshi Sundaram ... Respondent/Petitioner/
Plaintiff
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order passed in
E.P.No.18 of 2017 in O.S.No.86 of 2009, dated 16.02.2023 by the
learned District Munsif cum Judicial Magistrate, Cheranmahadevi.
For Petitioner : Mr.S.Mahesh Babu
Kuthalingam ...Petitioner/Respondent/
Defendant
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.866 and 867 of 2023
Vs.
Meenakshi Sundaram ... Respondent/Petitioner/
Plaintiff
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order passed in
E.P.No.19 of 2017 in O.S.No.84 of 2009, dated 16.02.2023 by the
learned District Munsif cum Judicial Magistrate, Cheranmahadevi.
For Petitioner : Mr.S.Mahesh Babu
For Respondent : No Appearance
COMMON ORDER
The petitioner is aggrieved by the impugned order passed by the
District Munsif cum Judicial Magistrate, Cheranmahadevi in E.P.Nos.18
and 19 of 2017 in O.S.Nos.86 and 84 of 2009, respectively. By the
impugned order, the District Munsif cum Judicial Magistrate,
Cheranmahadevi held as under:
"In E.P.No.18 of 2017 in O.S.No.86/2009
1. The Decree Holder/plaintiff has filed this EP to
enforce a money decree of Rs.25,760/- along with accrued
interest as per the decree in O.S.86/2009 by attaching and
sale of the EP schedule property of the Judgment debtor.
2. The respondent/Judgment Debtor filed a formal
counter and contends that the property jointly belongs to JD
and his wife by name Indira. Since the property stands in
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C.R.P(MD)No.866 and 867 of 2023
joint owership the same cannot be attached and sold as to
realize the decreetal amoun. Thus, prayed for dismissal of
the E.P.
Now the point to be determination is:
Whether this EP is to be allowed or not?
3. The bone of contention of the Judgement Debtor is
that the property morefully described in the EP petition, he
has only an undivided half interest and, therefore, it cannot
be attached and sold in execution. However, the perusal of
the EP petition would reveals that the Decree Holder also
prayed to attach only an undivided share and sale the same
so as to realize the decreetal amount.
4. After considering the rival submissions, this court
is of the thoughtful opinion that there is no bar in attaching
the undivided share of the respondent/Judgment Debtor,
and there is also no bar to selling an undivided interest in
the immovable property. It is because of the settled law that
the purchaser of undivded share in immovable property can
very well file a partition suit and get his share determined
by metes and bounds. Ergo, this court is inclined to allow
this EP
Hence attach by., Batta in 3 days.
In E.P.No.19 of 2017 in O.S.No.84/2009
1. The Decree Holder/plaintiff has filed this EP to
enforce a money decree of Rs.92,256/- along with accrued
interest as per the decree in O.S.84/2009 by attaching and
sale of the EP schedule property of the Judgment debtor.
2. The respondent/Judgment Debtor filed a formal
counter and contends that the property jointly belongs to JD
and his wife by name Indira. Since the property stands in
joint owership the same cannot be attached and sold as to
realize the decreetal amoun. Thus, prayed for dismissal of
the E.P.
Now the point to be determination is:
Whether this EP is to be allowed or not?
3. The bone of contention of the Judgement Debtor is
that the property morefully described in the EP petition, he
has only an undivided half interest and, therefore, it cannot
be attached and sold in execution. However, the perusal of
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.866 and 867 of 2023
the EP petition would reveals that the Decree Holder also
prayed to attach only an undivided share and sale the same
so as to realize the decreetal amount.
4. After considering the rival submissions, this court
is of the thoughtful opinion that there is no bar in attaching
the undivided share of the respondent/Judgment Debtor,
and there is also no bar to selling an undivided interest in
the immovable property. It is because of the settled law that
the purchaser of undivded share in immovable property can
very well file a partition suit and get his share determined
by metes and bounds. Ergo, this court is inclined to allow
this EP
Hence attach by., Batta in 3 days."
2. The petitioner is the defendant in O.S.Nos.84 and 86 of 2009.
The suits were decreed by the District Munsif cum Judicial Magistrate,
Cheranmahadevi as early as on 29.06.2012.
3. The petitioner filed appeals in A.S.Nos.47 and 48 of 2012,
which were also unsuccessful as the said appeals were dismissed on
17.02.2016. After the dismissal of the above appeals, the respondent
initiated proceedings to recover the amount from the petitioner in
E.P.Nos.18 and 19 of 2017. In the said proceedings, the petitioner filed a
counter stating that the property jointly belongs to the petitioner and his
wife and that unless there is partition of the property, it cannot be
attached.
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C.R.P(MD)No.866 and 867 of 2023
4. The learned counsel for the petitioner also filed a copy of the
sale deed executed in favour of the petitioner and his wife.
5. Therefore, there is no merit in the submission of the learned
counsel for the petitioner. The petitioner has to pay the amount as
decreed or in the alternative face the consequences for not honouring the
decree passed as early as on 29.06.2012, which was confirmed on
17.02.2016 in A.S.Nos.47 and 48 of 2012.
6. The present Civil Revision Petition is liable to be dismised. it
therefore stands dismissed with the above observations. No costs.
Consequently, connected miscellaneous petitions are closed.
29.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.866 and 867 of 2023
To
1.The District Munsif cum Judicial Magistrate,
Cheranmahadevi.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.866 and 867 of 2023
C.SARAVANAN,J.
SN
C.R.P(MD)No.866 and 867 of 2023
29.03.2023
https://www.mhc.tn.gov.in/judis
