ANNIE THOMAS Vs. THOMAS JOHN

JUDGEMENT

(1.) <DJG>Basant, J.</DJG> Petitioner is the decree holder/wife. For securing the amount due as per a compromise decree, she filed a petition for execution. A property was attached. Claims were made by the siblings of the judgment debtor/husband. The court below, by Ext.P5 order, excluded 2/5 shares of the property under attachment from sale. This was allegedly on the basis of the agreement between the parties. According to the wife/execution petitioner, not 2/5 shares but 2/9 shares alone are entitled to be excluded from sale. She therefore filed a petition for review of Ext.P5 order. By Ext.P7 order the said I.A. was dismissed.

(2.) The learned counsel for the petitioner/decree holder/wife submits that as a matter of fact only 2/9 shares (i.e. 2 x 2/3 x 1/6) and not 2/5 shares are liable to be excluded as the share of the two out of six brothers. Prima facie we find merit in that submission. We are, in these circumstances, satisfied that Exts.P5 and P7 orders can be set aside and the court below can be directed to dispose of E.A. 121 of 2009 afresh in accordance with law. We note that service on the respondents is not complete. But we are satisfied in the peculiar facts and circumstances of this case that it is not necessary to wait any longer for issue and return of notice to the respondents. The court below can be directed to dispose of E.A.121 of 2009 after hearing the parties, who are interested in the matter and who are appearing before the court below now.

(3.) In the result: