A SIVAPRAKASH Vs. AMMASAIATHAL ALIAS CHINNAMMAL

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is filed against the order dated 7.7.2008 made in EA.No.18/2007 in EP.No.83/2003 in OS.No.45/1999 by the learned Additional District and Sessions Judge (FTC-V) Coimbatore at Tiruppur, allowing the petition filed by the obstructor/3rd party under Order 21 Rules 97, 99 and 101 of CPC, thereby excluding the undivided 1/3rd share of the petitioner/obstructor from execution of the decree passed in EP.No.83/2003.

(2.) The original suit in OS.No.457/1999 was instituted by the Appellant/decree holder for specific performance of agreement of sale dated 16.0.1996 against the deceased 1st Defendant Subbaraya Gounder and his sons, Respondents 2 and 3 herein/ Defendants 2 and 3. The registered sale agreement was executed by the deceased 1st Defendant and his sons Defendants 2 and 3 in favour of the Appellant. During the pendency of the suit, the father of the Defendants 2 and 3 died and an application in IA.No.1224/2001 was filed by the Appellant/Plaintiff in OS.No.457/1999 to amend the short and long cause title to add the word 'died' after K.Subbaraya Gounder 1st Defendant in the suit and also for amendment by adding paragraph (3a) after paragraph (3) of the plaint that 'subsequent to the filing of the suit, the 1st Defendant K.Subbaraya Gounder died on 7.3.2001, his legal heirs viz. the Defendants 2 and 3 are liable to execute the sale deed as per the suit agreement. The learned counsel, who appeared for the Defendants 2 and 3 who were already on record, endorsed no objection in the said IA.No.1224/2001. The said application was allowed. Subsequently, the Defendants 2 and 3 remained exparte and an exparte decree was passed by the learned Subordinate Judge, Tiruppur on 28.8.2001. In execution proceedings in EP.No.32/2002 in OS.NO.457/1999, filed by the Appellant/ decree holder, sale deed was got executed by the Sub Court, Tiruppur in favour of the Appellant/decree holder on 29.7.2003. The Appellant/ decree holder filed EP.No.87/2003 for getting delivery of possession from the Respondents/the Defendants 2 and 3.

(3.) The 1st Respondent/3rd party/obstructor filed an application in EA.No.18/2007 in EP.No.83/2003 against the delivery of the suit property to the Appellant/ decree holder on the ground that she is the wife of the deceased 1st Respondent/1st Defendant Subbiah Gounder and she is entitled for 1/3rd share in the suit property after the death of her husband. The said petition was dismissed by the learned Additional District Judge (FTC-V) Coimbatore at Tiruppur on the ground that she can agitate her right in the suit filed by her in OS.NO.458/2006 and in the event of her getting a decree in the said suit, the obstructor could invoke the provisions of Section 144 of CPC. Aggrieved against the said order, the 1st Respondent/obstructor filed a Civil Revision Petition in CRP.No.1146/2008 and the same was allowed by this court by order dated 29.4.2008, whereby this court remanded the matter to the lower court and directed the court to consider the right of the 1st Respondent/obstructor in EA.No.18/2007 itself.