IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.04.2009 CORAM THE HONOURABLE Mr. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C. R. P. (NPD) No. 796 of 2009 and M.P.No.1 of 2009 T.Kolandasamy .. Petitioner Vs.
P.Rathinam @ Rathinayal ... Respondent Civil Revision Petition is filed under Section 115 of CPC, against the fair and decretal order dated 29.11.2008 made in I.A.No.27 of 2008 in O.S.No.444 of 1994 on the file of the Court of Second Additional Subordinate Judge, Erode.
Heard the learned counsel appearing for the revision petitioner whose grievance is that in the final decree proceedings in I.A.No.27 of 2008 in O.S.No.444 of 1994 on the file of the Court of Second Additional Subordinate Judge, Erode, the learned Judge had directed the Commissioner to measure and divide the house property against which there is no decree as per the Judgment in A.S.Nos.40 of 2003 and 75 of 2003 on the file of the Court of Principal District Judge, Erode. The learned counsel would focus the attention of this Court through the decree passed in O.S.No.444 of 1994, a partition suit in which the learned trial Judge has dismissed the claim of partition in respect of the plaint schedule Item No.II which is S.No.586/B measuring 2 acres 82 cents. The finding of the learned trial Judge is confirmed in A.S.No.75 of 2003 by the first appellate Court. But the appeal preferred by the plaintiff against the decree of the learned trial Judge in respect of the entire plaint schedule Item No.1 , the learned first appellate Judge in A.S.No.40 of 2003 had allowed the appeal in respect of the house property having an extent of 42ft east to west and 15 ft north to south. But the learned trial Judge in the final decree application in I.A.No.27 of 2008 in O.S.No.444 of 1994 had directed the Commissioner to divide and partition the house property even though the learned Judge in his order has excluded the house property and the mistake has crept in by inadvertence. Under such circumstances, this Court has to interfere with the order of the learned Second Additional Subordinate Judge, Erode in I.A.No.27 of 2008 in O.S.No.444 of 1994.
2. In fine, this civil revision petition is allowed and the order passed in I.A.No.27 of 2008 in O.S.No.444 of 1994 on the file of the Second Additional Subordinate Judge, Erode is modified and the learned Advocate Commissioner is directed to execute the warrant in terms of the decree passed in A.S.NOs.40 of 2003 and 75 of 2003 on the file of the Court of Principal District Judge, Erode. The learned Commissioner is directed to visit the property, after giving notice to learned counsel appearing for both sides. Consequently, connected M.P.No.1 of 2009 is closed.
06.04.2009 Index:Yes Index:yes sg To the Second Additional Subordinate Judge, Erode A.C.ARUMUGAPERUMAL ADITYAN,J sg C.R.P(NPD)No.796/2009 06.04.2009 C.R.P(NPD)Nos.783 &784/2009 A.C.ARUMUGAPERUMAL ADITYAN,J In fine, this civil revision petitions are allowed and the order passed by the first appellate Judge in C.M.A.No. 13 of 2008 in I.A.No.1137 of 2007 in O.S.No.908 of 2007 and C.M.A.No.11 of 2008 in I.A.No.1138 of 2007 in O.S.No.908 of 2007 respectively on the file of Additional District Munsif No.1, Salem is set aside only in respect of the direction regarding the removal of the plaint from the file of the learned trial Judge. The learned trial Court is directed to restore O.S.No.908 of 2007 on its file, after restoration, the defendants are entitled to file a petition under Order 7 Rule 11 of CPC for rejection of the plaint. On such filing of the petition, the learned trial Judge is directed to consider the petition filed under Order 7 Rule 11 of CPC filed by the defendants and dispose of the same in accordance with law, within a period of two months thereafter.No costs. Consequently, connected MPs are closed.
03.04.2009sg