RAJAMMA Vs. RANI SOBHANAM

JUDGEMENT

(1.) Revision petitioners are defendants 39 to 43 in O. S.14 of 1960 of the Additional Munsiff's Court, Neyyattinkara. They challenge the order in E. P. 663 of 1990 allowing the 24th defendant (2nd respondent) to take delivery of APQLMNO plot in the plan appended to the final decree. That is for himself and also on behalf of the 41st defendant. The Sub Judge made it clear that the order will not affect the right of the 41st defendant.

(2.) As per the final decree in O. S.14 of 1960 plaintiffs 4, 5, 7 and 9 are allotted APQLMNO plot having an extent of 53.333 cents. 24th defendant purchased the shares of plaintiffs 4 and 5 as per Exts. Al and A2. On the strength of the assignment deeds 24th defendant filed execution petition to get delivery of the plot for himself and on behalf of the 41st defendant. The executing Court held that 24th defendant is entitled to take delivery of the plot for himself and as a coowner on behalf of the 41st defendant who obtained rights from plaintiffs 7 and 9.

(3.) Revision petitioners/contend that 24th defendant had filed O. S.847 of 1983 for partition of his half share in the property, that the suit was dismissed and that A. S.359 of 1987 is pending and so he cannot get delivery of the property in the E. P. It is also contended that 24th defendant had filed E. P. 604 of 1989 to get delivery of property and as that petition was dismissed holding that his remedy is to file a suit for partition the present execution petition is barred by res judicata.