This civil revision petition is directed against the Order and Decreetal order dated 05.04.2007 made in R.E.A.No.71 of 2004 in R.E.P.No.24 of 2002 in OS.No.268 of 1995 on the file of learned District Munsif Court, Palacode.
2. The first respondent has filed the above Suit in O.S.No.268 of 1995 on the file of learned Subordinate Court, Dharmapuri as against the second respondent for partition and the same came to be decreed Ex-parte. In the said factual backdrop the first respondent has filed the above R.E.P.No.24 of 2002 to execute the Ex-Parte Decree.
3. Whereas according to the revision petitioner he is in possession and enjoyment of the Execution Petition scheduled property and the said property came to be allotted as his share vide partition deed dated 09.10.1974. Therefore he filed the above Execution Application No.71 of 2004 under Section 47 of CPC seeking to set aside the Ex Parte Decree challenging the Decree as null and void.
4. According to the revision petitioner, the 1st respondent failed to include the revision petitioner as party in the suit. Accordingly he prayed for setting aside the decree. The learned Trial Judge dismissed the revision petitioner’s application holding his claim as untenable. The said order of dismissal is under challenge in this civil revision petition.
5. I heard Mr.J.Nandagopal, learned counsel for the petitioner and Mr.R.Selvakumar, learned counsel for the 1st respondent and perused the entire materials available on record.
6. According to the revision petitioner the suit properties are exclusive properties of one Bharati Gounder and vide a partition deed of the Year 1974, the above property came to be allotted as revision petitioner’s share.
7. However on perusal of records, it is seen that the revision petitioner has failed to establish the same, whereas contrarily in the partition deed, the suit property is shown only as common property of Hindu undivided family of Bharati Gounder. No documents were produced by the revision petitioner to establish his case that the properties are exclusive properties of Bharati Gounder.
8. More so, from the deed it is further seen that the partition deed was not in full exercise, assigning shares to the respective shareholders, whereas the alleged partition denotes only a partial partition between very few parties involving very few properties.
9. It is equally important to state that as against the above stated Decree made in O.S.No.268 of 1995, there was no appeal filed and it has become final.
10. No doubt that the above partial partition said to have effected between the parties in the deed will no way affect the first respondent’s share or title or interest over the property.
11. The execution Court has gone into the above aspects in proper manner and has appreciated the above facts. There is neither Infirmity nor irregularity in the impugned order, accordingly same is hereby sustained by dismissing this civil revision petition.
12. In the result:
(a) the Civil Revision Petition is dismissed, by confirming the order passed in R.E.A.No.71 of 2004 in R.E.P.No.24 of 2002, dated 05.04.2007, on the file of the learned District Munsif Court, Palacode;
(b) the Executing Court, namely, the learned District Munsif Court, Palacode is hereby directed to dispose of the Execution Petition in R.E.P.No.24 of 2002 within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
28.03.2017 Note:Issue order copy on 15.02.2019 vs Index:Yes Speaking order To The District Munsif Court, Palacode.
M.V.MURALIDARAN, J.
vs
Pre-Delivery order made in CRP(NPD)No.4077 of 2008 and
M.P.No.1 of 2008 28.03.2017