K P ANANDAN Vs. K P MADHAVAN

JUDGEMENT

(1.) THE present Review application has been filed for reviewing the judgment delivered by this Court dated 10.12.2009 in S.A.No.662 of 1991, whereby the second appeal filed by the 1st respondent herein was dismissed.

(2.) THE short facts of the case, which are necessary for disposal of the review application, are as follows: (a) K.P.Anandan, the review petitioner herein, is the plaintiff in O.S.No.7832 of 1984 on the file of XV Assistant Judge, City Civil Court, Madras and the respondents are defendants 2 to 4 and 6. Pending second appeal, defendants 1 and 5 died. THE review petitioner/herein filed the suit as against his mother Padmavathi and his siblings as defendants 1 to 6 for partition and separate possession of his 1/7th share in the suit property and also a sum of Rs.858/- per month being future mesne profits of his 1/7th share from the date of plaint till the allotment of his share. THE suit was contested by the defendants and the same was dismissed on 15th July, 1987. Aggrieved over the same, the plaintiff has filed A.S.No.479 of 1988 before the XI Additional Judge, City Civil Court, Madras and the lower appellate court allowed the appeal in part by granting a preliminary decree for 1/7th share in the suit property and confirmed the finding with regard to the future mesne profits. Aggrieved over the same, the 1st respondent herein filed S.A.No.662 of 1991 before this Court and this Court by its judgment dated 10.12.2009 dismissed the appeal and confirmed the finding of the lower appellate court. During the pendency of the second appeal, the mother of the plaintiff, by name, Padmavathi as well as the 5th defendant Kirupa died. (b) THEreafter, the plaintiff filed the present review application stating that during the pendency of the second appeal, defendants 1 and 5 died and the surviving parties in the second appeal are their legal representatives and so, the 1/7th share of the plaintiff has now increased to 1/5th share in the suit property. Though the review applicant claimed mesne profits, the first appellate Court has not considered this aspect and negatived his claim in this regard and granted a decree only with regard to his entitlement of 1/7th share. During the proceedings of the second appeal, the review petitioner has omitted to represent before this Court with regard to the disallowed portion, namely, future mesne profits. Hence, the present application is filed to review the judgement delivered in the second appeal.

(3.) PER contra, the learned counsel for the 1st respondent/ 1st defendant submitted that at the time of hearing the second appeal, no argument was advanced with regard to the disallowed portion of mesne profits. Generally if a party obtained a decree in part, ought to have filed an appeal or cross appeal with regard to the disallowed portion. Having not done so, now the review applicant cannot ask for the relief by way of review petition. Further, the learned counsel submitted that the scope of the review is very narrow and only if the error is apparent on the face of the record, the review application could be entertained.