BHANUMATHI Vs. K. ABDURAHIMAN HAJI

JUDGEMENT

(1.) Aggrieved by the order passed in E.A.No.446/2022 (Ext.P13) in E.P.No.191/2019 in F.D.I.A.No1702/2017 in O.S. No.16/2016 of the Court of the Subordinate Judge, Kozhikode, the judgment debtors 1 and 2 have filed the original petition. The first respondent is the decree holder, and respondents 2 to 5 are the judgment debtors 3 to 6.

(2.) The relevant facts necessary for determining the original petition are: the petitioners are sisters. The first petitioner is a spinster and the second petitioner is a separated lady. They reside in the undivided family dwelling house and the appurtenant land, which is comprised in 6 cents of land described in detail in the plaint. The plaint scheduled property (in short, property) originally belonged to the mother of the petitioners and the respondents 2 to 5. They belong to the "Kannakkan " scheduled caste community. The first respondent is a real estate businessman hailing from the Muslim community. The first respondent purchased shares in the property. He then sued for partition and allotment of his share. A preliminary decree was passed dividing the property into ten equal shares. The first respondent is allotted 2/10th shares. Then he filed F.D.I.A.No.1702/2017 to pass the final decree. Ext.P3 final decree has been passed based on Ext.P2 Advocate Commissioner report. As per the final decree, plot 'A ' is allotted to the first respondent and plot 'B' is allotted to the petitioners and other sharers. However, as per the final decree, the toilet, bathroom and cattle shed, which are an integral part of the dwelling house, are unreasonably allotted to the first respondent. The allotment would affect the beneficial enjoyment of the dwelling house. The petitioners have preferred A.S.No.40/2019 (Ext.P4) before the Court of the District Judge-IV, Kozhikode, challenging Ext.P3 decree. The petitioners have also filed Ext.P5 application to stay the execution proceeding. In the meantime, the first respondent has filed E.P.No.191/2019 to execute the decree. Unfortunately, the appeal was dismissed for default. The petitioners have applied to re-admit the appeal and the first respondent has filed E.A.No.390/2022 to remove the obstructions in the pathway to the property. The first respondent attempted to demolish the bathroom and toilets. The Advocate Commissioner has filed Ext.P8 report with the plan and sketch prepared by the Surveyor. By Ext.P9 order, the court below has directed the property to be delivered to the first respondent after removing the obstructions. The petitioners have filed E.A.No.446/2022 in the execution petition under Sec. 4 of the Partition Act, 1893 (for brevity, referred to as 'Act'), to permit them to purchase the share of the first respondent, who is a stranger. It is well settled that an application under Sec. 4 of the Act is maintainable even at the execution stage. The court below has dismissed the application by the impugned Ext.P13 order. Ext.P13 is erroneous and illegal. Hence, the original petition.

(3.) Heard; Sri. K.M. Firoz, the learned counsel appearing for the petitioners and Sri. K. Mohanakannan, the learned counsel appearing for the first respondent.