The above Civil Revision Petition has been filed by the defendants challenging the fair and decreetal order dated 21.09.2017 in I.A.No.846 of 2014 in O.S.No.28 of 2008 on the file of the learned II Additional District Judge, Tiruchirappalli.
2. Heard the learned Counsel for the petitioners and the learned Counsel for the respondents and perused the materials available on record.
3. The plaintiffs filed a suit in O.S.No.28 of 2008 before the trial Court for partition. After hearing both sides, the trial Court passed a preliminary decree, against which, the plaintiffs have filed an appeal before this Court and the same is pending. Under such circumstances, the plaintiffs filed a final decree petition in I.A.No.108 of 2014 and the same was pending. Now the petitioners/defendants have filed an application in I.A.No.846 of 2014 under
Section 152 Cr.P.C. seeks to amend the description of ?A? schedule 1st item of the suit property as per Ex.A.22 in the decree.
4. The learned Counsel for the petitioners would submit that there was an error committed by the trial Court in the description of ?A? schedule 1st item of the suit property in the decree, for which he sought for correction.
5. The learned Counsel for the petitioners would draw the attention of this Court to the judgment of the trial Court, wherein it has been stated as follows:
? Regarding the A schedule property Ex.A.22 settlement deed has been filed executed by K.S.Hameed alias K.Shahul Hameed in favour of Kader Ismail on 28.05.2004. In the 1st item of the A schedule property 6500 sq.ft has been gifted to Kader Ismail. After the death of Kader Ismail when K.S.Hameed alias K.Shahul Hameed was alive and he is entitled to 1/6th share and hence the plaintiffs are entitled to 5/6th share and the 1/6th share of K.S.Hameed alias K.Shahul Hameed, after his life it will go to the share of the defendants 1,7 and 8. Hence, the plaintiffs are entitled to 5/6th share in the 1st item of A schedule property. Item 2 of the A schedule property belongs to the 1st defendant as Ex.B.8 settlement deed.?
6. He would further submit that but in the decree, the entire property has been given to the respondents/plaintiffs, whereas the plaintiffs/respondents are entitled to only 6500sq.ft Hence, he seeks for interference of this Court to the order passed by the trial Court.
7. Heard the learned Counsel for the petitioners and the learned Counsel for the respondents and perused the materials available on record.
8. On a perusal of the impugned order, it is seen that the trial Court has dismissed the application by stating that Section 152 C.P.C., cannot be invoked in the above case, which is a very cryptic order without stating as to why Section 152 C.P.C., is not applicable. Hence, without averting to the merits of the case, this Court is inclined to set aside the order passed by the trial Court and remand the matter the back to the trial Court.
9. In the result, the Civil Revision Petition is allowed and the order made in I.A.No.846 of 2014 in O.S.No.28 of 2008 on the file of the learned II Additional District Judge, Tiruchirappalli is set aside and the matter is remanded back to the trial Court for fresh consideration and pass orders on merits and in accordance with law within a period of one month from the date of receipt of a copy of this order. No costs. Consequently, the connected Miscellaneous Petition is closed.
To II Additional District Court, Tiruchirappalli.
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