SUBBIAN Vs. SIVA KUMAR

JUDGEMENT

(1.) THE above civil revision petition is filed under Section 115 of the Civil Procedure Code and directed against the order of the Court of the District Munsif, Thiruppur dated 17. 7. 2000 and made in E.A. No. 121 of 2000 in E.A. No. 19 of 2000 in E.P. No. 72 of 1996 in O.P. No. 256 of 1973. THE facts of the case leading upto the filing of the above revision petition are as follows: THE petitioner herein Subbian, and one Rengasami are brothers and sons of one Muthusami Naicher, who had four daughters besides the above said two sons. Kannammal, one of the daughters is the mother of Siva Kumar, the respondent herein. Muthusami Naicker died on 21.3.1973. Subbian filed a suit in O.S. No. 256 of 1973 on the file of the Subordinate Judge of Thiruppur, for partition. THE preliminary decree was passed. It was followed by the passing of the final decree on 10.2.1993 by compromise. It seems, there was no appeal against the said decree, obviously, because the said decree was one of compromise. THE petitioner Subbian, got his properties as per the decree and sold some of them. Similarly, the sisters of the petitioner herein, also got their property as per the decree and dealt with them in their own name and title. THE said Rangasami filed E.P. No. 72 of 1993 for delivery of possession of the properties as per the decree and ultimately, possession was taken through court on 21.10.1998. In the mean time, the two sons of the petitioner herein, Venkatachalam and Marappan, filed a suit in O.S. No. 534 of 1994 for partition of the very same properties all over again, impleading the petitioner herein. Rangasami, and other sisters, who were all arrayed as defendants in the suit in O.S. No. 256 of 1973, bringing out the case of ancestorality of the property and their share in them. It is pertinent to state that in the suit filed by the sons of the petitioner, i.e. in O.S. No. 534 of 1994, the properties which fell into the share of the petitioner herein which has been sold by him, subsequently, was not included for partition. It is the further case of the respondent herein, that on 22.10.1998. Immediately after taking possession of the property, which are agricultural lands, on 21.10.1998, the said Rangasami executed an registered a will, bequeathing the suit properties to the respondent. While so, the two sons of the petitioner who filed O.S. No. 534 of 1994 filed a transfer petition in E.P. No. 72 of 1993, for transfer of the E.P. to the Sub Court, Thiruppur for hearing it with O.S. No. 534 of 1994. It was dismissed by the E.P.Court. However, on revision, the High Court permitted the transfer which was later set-aside by the Supreme Court in Civil Appeal No. 6725 of 1999 on 18.9.1999. While that being so, the said Rangasami became ill on 26.11.1999 and died on 3.12.1999 at Sri Ramakrishna Hospital, Coimbatore. THEreupon, the respondent came to know about the will in his favour through one Saravanan, who propounded the will. After gathering particulars about the will, the respondent herein filed E.A. No. 19 of 2000 in E.P. No. 72 of 1993 to implead him as 3rd party petitioner. In the said petition, one Saravanan and Palanisami, who are the attesting witnesses of the will, were examined as witnesses on behalf of the respondent herein and they spoke about the execution of the will by Rangasami. THE respondent, the legatee, who has admitted the said Rangasami in the Hospital, wanted to give his evidence, which was stoutly objected to, by the petitioner herein. Hence the respondent filed a petition in E.A. No. 121 of 2000 seeking permission of the court to permit him to adduce evidence under Order 18 Rule 3-A of the Civil Procedure Code. In the affidavit filed in support of the above petition, the respondent averred that the said Rangasami filed the above execution petition for delivery of possession and delivery was taken in pursuance of the order of the E.P.Court. Meanwhile, the said Rangasami died on 3.12.1999. It appears that he has executed a registered will and last testimony in his favour. THE said will was propounded by Saravanan on the third day of death of Rangasami and the respondent herein filed E.A. No. 19 of 2000 to continue the proceedings as he is the person becoming entitled to the estate of the deceased Rangasami, that he is in possession and enjoyment of the properties. In order to prove the same on the side of the respondent, two witnesses namely, Saravanan and Palanisami were examined and they spoke in respect of the execution and registration of the will. Since the respondent has no personal knowledge of the will, the said two witnesses were examined, who are the scribe, i.e., the attesting witnesses of the will. THE respondent evidence is only a formality. He is not going to fill up any lacuna in the evidence of PWs 1 and 2 and he is going to speak about the fact that Rangasami Naicker became ill and was admitted in the Ramakrishna Hospital, Coimbatore for treatment and the respondent was attending on him and also about his death in the hospital on 3.12.1999 and about his cremation. It is further averred in the affidavit that Order 18, Rule 3-A is not applicable to the execution proceedings. THE said application was stoutly opposed by the petitioner herein on the ground that the respondent has not stated any reason in the affidavit as to why his evidence was with held, when the evidence on his side commenced. He has not filed a petition prior to commencing of the oral evidence, seeking permission of the Court. Further the petitioner herein has also denied the factum of death of Rangasami and also the genuineness of the will. THE Execution Court after hearing the parties has permitted the petitioner to give evidence. THE reasoning given by the Execution Court is as follows:-

(2.) The correctness of the said order is now questioned into the present revision petition. Mrs. Krishnaveni, learned counsel appearing for the petitioner, though admitted all the facts during her arguments, would contended vehemently that the order of the Execution Court permitting the respondent herein to give evidence after completion of the evidence of other witnesses on the side of the respondent is not correct and on the question whether the permission as contemplated under Order 18, Rule 3-A is a prior permission or permission subsequent to the conclusion of other witnesses there are divergent views of decision of this court and in view of the conflicting judgment Sathasivam, J., in a similar matter referred the issue to a larger bench which has been reported in S.Srinivasan v. Balambal and 3 others, 2000 (I) CTC 646, and made a request that this case also be referred to a larger Bench, since the issue involved is similar to the one involved in the case which has been dealt with by

(3.) LET me first discuss the question of maintainability of the revision petition, since it is in the nature of a preliminary objection. The question whether the interlocutory order in a suit or proceeding amounts to a "case decided", for the purpose of Section 115 of Civil Procedure Code, is arisen in several cases before different Courts.