E VANNACHI ALIAS CHELLAMMAL Vs. CHELLIAH KONE

JUDGEMENT

(1.) THE petitioners obtained a decree in a suit for partition and also got a final decree.. THE final decree was challenged in A.S.No.694 of 1982 in this Court. By consent, an amount of owelty was fixed and a judgment was rendered on the basis of consent on 9.10.1991. In spite of the judgment being one by consent, the defendants filed Letters Patent Appeal. THEre was a long delay in representation of the papers viz., 972 days. THE Court, while condoning the delay, rejected the appeal on the ground that the owelty was increased with the consent of both parties and the appeal was not sustainable. That order was passed on 31.1.1995. THE plaintiffs had deposited the owelty amount on 2.11.1995. A Commissioner was appointed and the Commissioner has to construct a wall to demarcate the property allotted to the shares of the parties. At that stage, Tamil Nadu Act 28 of 1995 was passed and a question was raised as to whether the Subordinate Judge could continue the proceedings or the matter should go before the District Munsif. According to the defendants, the suit was valued at Rs.15, 100 and, therefore, the matter should be heard only by the District Munsif. He filed a memo to the effect that the suit value being Rs.15, 100, the proceedings should be transferred to the Court of the District Munsif. He also contended that by virtue of Section 4 of Act 28 of 1995, the Court had no option but to transfer the proceeding.

(2.) ON the other hand, the contention of the plaintiffs was that the market value of the properties for the purpose of the suit was Rs.30, 000 and odd and only for the purpose of payment of court-fee, the value was Rs.15, 100 being the half share was adopted. The matter was argued before the learned Subordinate Judge. It is represented by counsel that though the matter was argued on three occasion, no order has been passed by the Subordinate Judge. He is keeping the proceedings pending without passing any order either in favour of the plaintiffs or in favour of the defendants. It is at this stage, this revision petition has been filed by the plaintiffs under Article 227 of the Constitution of India seeking a direction to the Subordinate Judge to dispose of the matter one way or the other.

(3.) UNDER Order XXI, Rule 10, Code of Civil Procedure, where the holder of a decree desires to execute it, shall apply to the Court which passed the decree. A similar question arose when Tamil Nadu Act 34 of 1980 was passed, enhancing the jurisdiction of the Courts and containing a similar provision for transfer of suits in K.Muthiyan Nadar v. R.Vijayarani, C.R.P.No.4561 of 1987 - Order dated 26.4.1988-1988 T.L.N.J. 149. I dealt with the matter at great length. After referring to the provisions of Section 4(2) of the said Act, which were similar to the provisions of Section 4(2) of the present Act 28 of 1995, I said:-