P. SANTHA Vs. S. ARUMUGAM

JUDGEMENT

(1.) This revision petition is filed by the third party in the execution proceedings against the fair and decreetal order dated 20.12.2006 made in REA No.137 of 2006 in REP No.19 of 2005 in O.S.No.26 of 2003 on the file of Subordinate Court, Sankari.

(2.) The 1st respondent/decree holder in O.S.No.26 of 2003 filed the execution petition in REP No.19 of 2005 against the 2nd respondent herein namely Mani, for realisation of decreetal amount and also seeking attachment of properties belonged to the 2nd respondent herein/judgment-debtor.

(3.) During the pendency of the above said proceedings, the revision petitioner, who is third party in the above said proceedings filed an execution application in REA No.137 of 2006 under Section 47, Order 21 Rule 58 and Section 151 CPC against the 1st respondent/decree-holder and also two other third parties namely Natarajan and Ramasamy Gounder. In the above said application, the case of the revision petitioner is that the properties sought for attachment in the execution proceedings are ancestral properties and the revision petitioner is the daughter of the 3rd respondent. The 2nd respondent/judgment-debtor is brother of the revision petitioner and the 4th respondent is the grand father of the revision petitioner. According to the revision petitioner, the respondents 2 to 4 and one Nallaya Gounder and his family members partitioned their properties by virtue of a registered partitioned deed dated 22.11.1984 and in the above said partition deed, the properties sought for attachment allotted to the respondents 2 to 4 herein. It is further stated that the revision petitioner and the respondents 2 to 4 are enjoying the properties without any division and hence, the revision petitioner is entitled to 1/6 share in the above said properties. The 1st respondent/decree holder brought the properties for sale as if the 2nd respondent is entitled to 1/3rd share but the 2nd respondent is only entitled to 1/6 share in the above said properties. As per Hindu Succession Act, 1956 and amended Act, 2005 (39 of 2005), by birth the revision petitioner is entitled to the share in the Hindu coparcenery properties under Section 6 as the daughter of the coparcener. Therefore, prayed for exclude 1/6 share of the revision petitioner from the sale.