MADRAS HARDWARE MART Vs. V HUTCHEESWARAN

JUDGEMENT

(1.) THESE Civil Revision Petitions are connected, arising out of the same suit O.S. No. 683 of 1970, on the file of the X Assistant Judge, City Civil Court, Madras, and hence they are taken up together. The said suit is a partition suit and preliminary decree for partition was passed on 28.4.1972 and final decree for partition was passed on 1.12.1975. The first defendant in the suit is the father and the second, third and fourth defendants and the first plaintiff are the sons. The first plaintiff died and hence the other plaintiffs were brought on record as his legal heirs. The suit relates to one house property and the preliminary decree declared 1/5th share in the said property to each of the first plaintiff and first defendant to fourth defendant. The above said final decree directed the first plaintiff, second and third defendants to sell their 3/5th share in all to the first and fourth defendants who owned the other 2/5th shares together. The fifth defendant was the mortgagee under the mortgage dated 7.3.1970, of the suit property from the first defendant. The 5th defendant assigned the said mortgage on 24.7.1975 to the 6th defendant who was a tenant of a portion of the said property. The 6th defendant was not a party originally but he was impleaded by order in I.A. No. 5641 of 1978.

(2.) FIRST defendant sold his 1/5th share under sale deed dated 16.5.1975 to 6th defendant. 4th defendant sold his 1/5th share under another sale deed dated 16.5.1975 to 6th defendant. These two sale deeds were thus prior to the above said final decree for partition. After the final decree for partition, plaintiffs sold their 1/5th share to 6th defendant by sale deed dated 16.2.1976, and 3rd defendant also sold his 1/5 share to 6th defendant under sale deed dated 3.3.1976. Thus 6th defendant became the owner of 4/5th share in the said suit property. But 2nd defendant did not sell his 1/5th share to 6th defendant, despite the direction in the above said final decree dated 1.12.1975. FIRST and fourth defendants also, the decree holders in the above said final decree, did not file Execution Petition for getting the sale deed pursuant to the final decree. But, it is said that they assigned the above said final decree in favour of 6th defendant on 25.1.1984. After the said assignment 6th defendant filed I.A. No. 10085 of 1987 praying for condonation of the delay in depositing the required stamp for being engrossed in the final decree so that the Execution Petition could be filed for executing the final decree. That I.A. was allowed by order dated 23.2.1987 whereby the delay was condoned. Thereafter 6th defendant filed E.A.V. in S.R. No. 42580 of 1990 under O. 21, R. 16 of the C.P.C. in December 1990, (that is, beyond 12 years from the date of the final decree, namely, 1.12.75), for granting permission to it, the assignee decree holder, to execute the said final decree. The said Execution Application was filed against 2nd defendant/judgment debtor alone since the said 2nd defendant alone had not executed the sale deed in respect of his 1/5th share.

(3.) AGAINST the said order of rejection in the above said Execution Application the above said Civil Revision Petition No. 711 of 1993 has been filed by the 6th defendant, the petitioner in the said Execution Application, against the 2nd defendant, who is the respondent (V. Hutcheeswaran) in the said Execution Application.