P RAMASAMY Vs. V MARIMUTHU

JUDGEMENT

(1.) "The plaintiff in O.S. No. 1340 of 19 68 on the file of the district Munsif, Sankari,. is the petitioner herein. He purchased property with specified measurements from one Muniya Mooppao who had three brothers by name Ramaswami, Kava Mooppan and Atthanari. Since the issues of Ramaswami,. Kava Mooppan and Arthanari tried to interfere with the property purchased by the petitioner herein, he filed O.S.No. 1340/1968 for a permanent injunction restraining the defendants in the suit from in any way interfering with his possession and enjoyment of the suit property. In the alternative, he has asked for partition and allotment of l/4th share. The first defendant in the suit is the son of Ramaswami. Defendants 3 and 5 are the sons of Kava Mooppan. Defendants 6 to 9 are the sons of Arthanari. On 17th September, 1974 a preliminary decree for partition was passed and a Commissioner was appointed subsequently to divide the property. On 30tn October, 1976, final decree was passed allotting the red marked portion in the plan attached to the decree to the petitioner herein. Subsequent to that final decree the petitioner filed R.E.P. No.466 of 1979 for delivery of this red marked portion. At that time the respondents herein, who are the sons of the seventh defendant in the suit OS. 1310 of 68 filed REA. No. 543 of 1979 praying for the dismissal of R.E.P, 466of 1979 on the ground chat they are in possession of the suit property, that they have got interest in the property and that the decreeholder is not entitled to taks possession of the property from the respondents herein by executing the decree. The executing Court, even though negatived the contention of the respondents herein to the effect that the seventh defendant who is the father of the respondents herein colluded with the plaintiff in the suit, allowed REA. No.543 of 1979 stating that the decree will not bind the respondents herein, who are admittedly the share is in the suit property. It is as against this order, the present revision has been filed by the decree-holder.

(2.) MR. S. Sethuratnam, learned counsel for the revision petitioner, pointed out that an application filed under section 47 of the Civil Procedure Code by persons claiming independent right in the suit property is not maintainable. On the other hand, MR. P. Pandhi, learned counsel for the respondents, submits that the respondents are claiming right through their father, the seventh defendant in the suit, and as such the application is maintainable. In the petition REA. No. 543 of 1979 filed by the respondents herein it has been clearly averred that they are the sons of the seventh defendant in the suit, that the seventh defendant did not care for the joint family affairs, that he joined hands with the first respondent in that petition, that he is collusively assisting the petitioner herein, that the respondents have interest in the suit property, that they are in physical possession of the petition mentioned property that their possession cannot be disturbed on the pretext of executing the decree obtained in of. O.S. No. 1340 of 1968 and that the execution petition has to be dismissed.

(3.) IN the result, the civil revision petition is allowed with the result, R.E.R. No. 545 of 1979 in R.E.P. No. 466 of 1979 in O.S. No. of 1340/68 on the file of the District Munsif, Sankari is dismissed. There will be no order ,as to costs. MUK