B.DHANAM Vs. P.USHA RANI

JUDGEMENT

(1.) This revision filed under Article 227 of The Constitution of India is directed against the fair and final order dated 23.01.2007 made in Transfer O.P.No.69 of 2006 on the file of the Principal District Court, Salem.

(2.) The petitioner is the plaintiff in O.S.No.1290 of 2004 on the file of the District Munsif Court, Salem. The suit was filed for a decree of specific performance and the fourth respondent herein was the sole defendant. The suit was decreed by the judgment and decree dated 11.10.2004. Thereafter, the petitioner filed R.E.P. No.309 of 2005 to execute the sale deed in her favour and the same was allowed by the Court by order dated 20.10.2005 and the sale deed was executed by the Trial Court and the execution proceedings was terminated. Thereafter, for delivery of possession, the petitioner filed another petition in R.E.P.No.472 of 2005 under Order 21 Rule 11 C.P.C. When the said petition was pending, respondents 1 to 3 herein who are the daughters of the fourth respondent/judgment debtor in O.S.No.1290 of 2004 filed a petition in R.E.A. No.33 of 2006 under Order 21 Rules 97, 98, 101 r/w Section 151 C.P.C. to determine their rights and share in the suit property to declare that the decree obtained by the petitioner herein in O.S.No.1290 of 2004 cannot be enforced against them (respondents 1 to 3 herein) and the scheduled mentioned suit property and for the order of permanent injunction to restrain the petitioner from in any manner causing disturbance to them and to dismiss the execution petition. This petition was filed on 05.01.2006. Within a period of one week i.e. on 12.01.2006, respondents 1 to 3 herein filed separate suit in O.S.No.104 of 2006 on the file of the Sub Court, Salem, claiming partition of the very same property, which is the subject matter of R.E.P.No.472 of 2005 and R.E.A.No.33 of 2006. After filing the said suit, respondents 1 to 3 filed the transfer petition before the Principal District Court, Salem in Transfer OP.No.69 of 2006 to transfer R.E.A.No.33 of 2006 to be heard and decided along with O.S.No.104 of 2006 pending before the Sub Court, Salem. The said petition was resisted by the petitioner by stating that the petition filed under Order 21 Rules 97, 98, 101 cpc has to be decided by the Executing Court as it has power to decide all issues and even assuming that respondents 1 to 3 have specifically claimed for partition, those proceedings shall await the result in the petition filed under Order 21 Rules 97, 98, 101 C.P.C. Nevertheless, the Principal District Court, without going into the legal question, opined that joint trial of R.E.A. No.33 of 2006 along with O.S.No.104 of 2006 would help the parties to settle the dispute in the same Court without multiplicity of proceedings and ordered for transfer of the said R.E.A.No.33 of 2006 to be tried along with O.S.No.104 of 2006. Challenging the said order, this Civil Revision Petition has been filed.

(3.) I have heard Mr.T.Murugamanickam, learned counsel for the petitioner. Though the respondents have been served and their names are printed in the cause list, none appears for the respondents.