SHANTAWA Vs. MALLAVVA

JUDGEMENT

(1.) The appellants counsel has filed a memo seeking permission to withdraw the appeal. The memo states that the appeal has become infructuous as final decree passed in the suit has already been executed by respondent No.1.

(2.) Respondent No.1 has got filed an application under Section 151 r/w Order 41 Rule 33 of CPC seeking modification of the share granted to her in the preliminary decree, she seeks enhancement of her share to 1/5th in the suit properties. In the affidavit subjoined with the application, the first respondent has stated that in the suit O.S. No. 201/2001 filed by her for partition and separate possession, she was granted 4/40th share in the suit properties and the preliminary decree drawn to that effect was challenged by the defendants by filing R.F.A. No. 3025/2010 before this court. This appeal was dismissed on 16.11.2005. Then she initiated proceedings for drawing up offinal decree, i.e., F.D.P No. 15/2011; final decree was also drawn on 18.07.2017 and now this appealis against the final decree. She has stated that in view of the judgment of the Supreme Court in Civil Appeal No. 32601 of 2018 (Vineeta Sharma V. Rakesh Sharma and others), she becomes entitled to a larger share than what was granted to her in the preliminary decree. Since this appealis continuation of the suit, preliminary decree can be modified by this Court.

(3.) Sri K.S. Patil for the appellants and Sri Dinesh Kulkarni for the respondents argued on the memo as well as on the application.