G SEKAR Vs. L GEETHA

JUDGEMENT

(1.) This intra Court appeal challenges an order of the learned single Judge of this Court made in Application No. 4063 of 2007 filed for passing of final decree in C.S. No. 153 of 1996.

(2.) The Court heard the learned counsel for the appellant and also for the respondents.

(3.) From the submissions made and looking into the materials available, the following would emerge as admitted facts: (a) The plaintiffs namely the respondents 1 and 2 herein, filed C.S. No. 153 of 1996 for partition and separate possession. The first defendant apart from defending the suit, filed an O.P. seeking probate on the strength of a Will alleged to have been executed by their father. On objection, the said OP was converted into TOS No. 4 of 1998. Both the suits were tried jointly. The learned single Judge made a judgment whereby a preliminary decree for partition was granted in C.S. No. 153 of 1996, while TOS 4 of 1998 was dismissed. Aggrieved, the first defendant preferred OSA Nos. 196 and 197 of 2001 before the Court. Both the appeals on enquiry were dismissed by a judgment dated 29.1.2007. The SLPs were filed by the first defendant before the Apex Court. The plaintiffs who had no notice of those proceedings, filed an application for passing of final decree in order to have their l/5th share each as declared in the preliminary decree. Those SLPs were dismissed by the Apex Court affirming the preliminary decree. (b) While the matter stood thus, the plaintiffs filed an application for appointment of Advocate Commissioner to inspect the suit property for the purpose of division by metes and bounds. On enquiry, the learned single Judge agreeing with the case of the plaintiffs, allowed the same. Hence, this appeal at the instance of the first defendant.