Madras High Court
Mamuna Maricar (Deceased) vs Hawa Hysha Nachiar (Deceased) on 11 September, 2023
C.R.P.(NPD)No.1126 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(NPD)No.1126 of 2006
and
MP.No.1 of 2006
1.Mamuna Maricar (deceased)
2.Bawa Bahruddin
3.Sheik Alaudeen
4.Kathija Nachiar
5.Jannath Nisha
6.Mohammed Thambi Maricar ... Petitioners
(Petitioners 4 to 6 brought on record as LRs of the deceased First
Petitioner viz. Mamuna Maricar vide Court order dated 29.11.2017
made in MPs 1 to 3 of 2014 in CRP.1126/2006)
Vs.
1.Hawa Hysha Nachiar (deceased)
2.Jagabar Nachiar
3.Shariba Nachiar
4.Sahulhameed Nachiar
5.Jameela Nachiar
6.Rabiath Nachiar
7.Nabeesa Nachiar
8.Asmath Nachiar
9.Parakth Nachiar
10.Hajira Nachiar
1/6
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.1126 of 2006
11.Vavalebbai Maricar
12.Mohammed Meeran Nachiar
13.Haija Nachiar
14.Kader Moideen Nachiar
15.Mohammed Hussain Nachiar @ Haji Ponnu
16.Pathamuthu Joharan
17.M.O.A.Hameed Faisal
18.M.O.A.Alsabeer
19.Maimoon Hani @ Maimunissa
(R2 to R19 not necessary for the present. Hence give up)
20.A.Habibunisha
(R20 impleaded as respondent vide Court order dated 3.2.2021
made in 289/2021 in CRP(NPD)No.1126 of 2006)
21.Sahulhameed Nachiar
22.Jameela Nachiar (Died)
23.Rabiath Nachiar
24.Nabeesa Nachiar
25.Asmath Nachiar
26.Parakth Nachiar
(R21 to R26 brought on record as LRs of the deceased R1viz. Hawa
Hysha Nachiar vide Court order dated 9.8.2021 made in
CMP.14349, 14348 & 14352/2020 in CRP(NPD)No.1126 of 2006)
27.Shaik Alaudeen
28.Razia Amine
29.Sabina Farwin ... Respondents
(R27 to R29 brought on record as LRs of the deceased R22 viz. Jameela
Nachiar vide Court order dated 11.9.2023 made in CMP.9749 of 2021)
PRAYER: Civil Revision Petition is filed under Section 115 of the Code
of Civil Procedure, against the order and decreetal order dated
2/6
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C.R.P.(NPD)No.1126 of 2006
10.01.2006, made in EA.No.90 of 2005 in EP.No.98 of 2004 in OS.No.13
of 1988, on the file of the Additional Sub Court at Nagapattinam.
For Petitioners : Mr.T.Girish
For Respondents : R1 & R22 – Died
R2 to R19 – Given up
Mr.A.Muthukumar (for R20)
R21 – Not ready notice
Mr.S.Raj Mahesh (for R23 to R26)
No Appearance (for R27 to R29)
ORDER
This revision arises against a dismissal of E.A.No.90 of 2005. The
said application was filed by defendants 1, 9 and 12. This application
was filed in E.P.No.98 of 2004 by the respondents before me. This
execution arises out of the suit for partition in O.S.No.13 of 1988.
2.Heard Mr.T.Girish, learned counsel for Mr.Srinath Sridevan,
learned counsel appearing for the petitioner and Mr.Muthukumar, learned
counsel for Mr.Raj Mahesh, learned counsel appearing for the
respondents.
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C.R.P.(NPD)No.1126 of 2006
3.It is the argument of Mr.Girish that the suit had been presented
claiming 1/3rd share whereas in the year 1969, the plaintiff had filed
O.S.No.64 of 1969 claiming 1/6th share. Therefore, a fresh suit for
partition in O.S.No.13 of 1988 is not maintainable. I asked Mr.Girish as
to whether this defence was taken in the written statement.
4.Mr.Girish very fairly stated that such defence was not taken in
the written statement and it had ended in a decree on 14.11.1995. This
defence was also not taken, at the time of final decree, which came to be
passed on 05.11.2001. The defence which was not taken at the time of
trial cannot be taken by the defendants at the time of execution. This is
because of two reasons, (i) the Executing Court cannot go behind the
decree and (ii) on account of the bar of principle of res judicata under
Explanation 4 to Section 11.
5.The decree not having been appealed against, it is not open to the
judgment debtors to plea that the decree is inexecutable. Consequently, I
do not find any merit in this revision. The Executing Court is directed to
take up the Execution Petition and ensure that the same reaches a finality
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C.R.P.(NPD)No.1126 of 2006
within a period of four (4) months from the date of receipt of a copy of
this order.
6.With the above observations, this civil revision petition is
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
11.09.2023
Index:Yes/No
Speaking Order :Yes/No
Neutral Citation:Yes/No
vs
To
The Additional Sub Court,
Nagapattinam.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.1126 of 2006
V.LAKSHMINARAYANAN,J.
vs
C.R.P.(NPD)No.1126 of 2006
and
MP.No.1 of 2006
11.09.2023
https://www.mhc.tn.gov.in/judis
